Lawyers Without Billboards
Real lawyers, real talk—without the billboards. Lawyers Without Billboards is an unfiltered look at family law, hosted by the partners of Shewmaker & Lewis: Steve and Patty Shewmaker, and Jimmy and Alexa Lewis.
With decades of experience in divorce, custody battles, child support, alimony, and criminal law, they break down legal myths, share expert insights, and dive into real cases (sometimes with a side of humor).
Expect candid conversations, legal deep dives, and the occasional sidebar on pop culture, legal movies, and life as family law attorneys. Whether you're navigating a family law issue, practicing law yourself, or just enjoy courtroom drama, this podcast offers valuable insights with a dose of levity.
New episodes every two weeks
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Lawyers Without Billboards
The Art of the Opening Statement | Lawyers Without Billboards S2-Ep21
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What makes a great opening statement? Is it storytelling? Strategy? Psychology? Or knowing exactly when to bend the rules without breaking them?
In this episode of Lawyers Without Billboards, the team at Shewmaker & Lewis dives deep into one of the most important — and misunderstood — parts of any trial: the opening statement.
Steve, Patty, Jimmy, and Alexa break down:
- Why opening statements may matter more than closing arguments
- How jurors and judges form impressions early
- The importance of themes, roadmaps, and courtroom storytelling
- Why lawyers should address bad facts head-on
- The difference between arguing and “advocating”
- How broken promises in opening statements can destroy credibility
- Real courtroom war stories, including jury objections, snap decisions, and Steve’s unforgettable “first-person opening statement” technique
Whether you're fascinated by courtroom strategy, jury psychology, or just love hearing experienced trial lawyers swap stories, this episode pulls back the curtain on how cases are framed before the first witness ever testifies.
🎙️ No gimmicks. No billboards. Just real lawyers talking about what really happens in court.
⏱️ Chapters
00:00 – Welcome to Lawyers Without Billboards
00:55 – What is the purpose of an opening statement?
03:30 – Why themes matter in trial strategy
05:20 – Opening statements vs. closing arguments
07:30 – Why jurors make up their minds early
11:05 – Can lawyers “open the door” in opening statements?
12:20 – How to craft a compelling opening
15:55 – How much argument is too much?
16:50 – How long should an opening statement be?
18:20 – Addressing bad facts before the other side does
20:55 – Promises lawyers should never make
22:20 – DUI example: facts vs. argument
25:20 – Why lawyers take notes during openings
26:20 – Turning an opening statement into evidence
27:40 – Art vs. science in courtroom storytelling
28:20 – Favorite courtroom opening statement stories
31:15 – Steve’s unforgettable “first-person opening”
36:20 – Final thoughts on courtroom advocacy
🔔 Subscribe for candid conversations about family law, relationships, and the legal system - without the billboards.
🎙️ Hosts: Steve & Patty Shewmaker, Jimmy & Alexa Lewis
🎧 Watch here: https://youtu.be/0h3fiWjIp0U or listen on Spotify, Apple Podcasts, Google Podcasts, and more.
📩 Contact: pshewmaker@shewmakerandlewis.com
| (770) 939-1939
🌐 Website: https://www.shewmakerandlewis.com
🎧 Podcast Library: https://shewmakerandlewis.com/lawyers-without-billboards
🎼 Music by Ben Hernandez – Dragonsong Productions
🎥 Produced by: Bleeding Edge, Inc.
🎬 Audio & Video Production: Rob Burgner
📍 Recorded at: Shewmaker & Lewis, Atlanta, GA
00:00:06 Narrator
Welcome to Lawyers Without Billboards, where we break down family law and other areas of the law.
00:00:12 Narrator
No gimmicks, no legal jargon, just real unfiltered talk from real lawyers.
00:00:17 Narrator
Join your hosts, Steve, Patty, Jimmy, and Alexa, partners at Shewmaker & Lewis, a law firm based in Atlanta, Georgia.
00:00:26 Narrator
Every episode, they tackle the legal questions that matter most.
00:00:29 Narrator
divorce, custody, child support, alimony, and everything in between.
00:00:35 Narrator
They’ll pull back the curtain to give you real insights on what happens inside the courtroom and beyond.
00:00:41 Patty Shewmaker
Reason 2, episode 20.
00:00:44 Patty Shewmaker
Welcome back to Lawyers Without Billboards.
00:00:46 Patty Shewmaker
We’re glad you’re here.
00:00:47 Patty Shewmaker
And this morning or this afternoon or whatever time of day it is.
00:00:52 Patty Shewmaker
What are we talking about today?
00:00:54 Steve Shewmaker
I think we’re going to lead off with opening statements and trials.
00:00:57 Patty Shewmaker
Well, that seems fitting to lead off with it.
00:00:59 Alexa Lewis
Sounds it sounds about right.
00:01:00 Patty Shewmaker
Yeah.
00:01:01 Patty Shewmaker
What’s your opening statement for this podcast?
00:01:03 Steve Shewmaker
I’m here.
00:01:04 Steve Shewmaker
I’m happy.
00:01:04 Alexa Lewis
I thought you just gave it.
00:01:05 Alexa Lewis
Didn’t you just give the opening statement?
00:01:08 Jimmy Lewis
Everything that guy said is ********.
00:01:10 Patty Shewmaker
That’s the most classic.
00:01:12 Patty Shewmaker
No, you’re right, you’re right.
00:01:14 Patty Shewmaker
That is the most classic.
00:01:16 Steve Shewmaker
LaGuardia Gambini’s opening statement.
00:01:19 Patty Shewmaker
The most classic opening statement in pop culture.
00:01:24 Patty Shewmaker
So what about opening statements?
00:01:26 Patty Shewmaker
It’s pretty easy to stand up.
00:01:29 Patty Shewmaker
And seems pretty easy.
00:01:31 Alexa Lewis
Introduce yourself, tell your story, sit down.
00:01:33 Steve Shewmaker
Let’s start out with a quiz.
00:01:36 Steve Shewmaker
What is the purpose?
00:01:38 Steve Shewmaker
And everybody’s going to have a chance to answer this.
00:01:39 Steve Shewmaker
What is the purpose of opening statements in trials, Jimmy?
00:01:43 Jimmy Lewis
It’s a preview of the evidence.
00:01:45 Steve Shewmaker
All right.
00:01:46 Steve Shewmaker
Is there anything, Alexa, you would add to that?
00:01:49 Alexa Lewis
I would say it’s to establish your theme of the case.
00:01:52 Steve Shewmaker
Okay, so Jimmy said preview of the evidence.
00:01:56 Steve Shewmaker
And you said theme.
00:01:58 Steve Shewmaker
What about you?
00:01:58 Patty Shewmaker
Is it my turn?
00:01:59 Steve Shewmaker
Yes, what about you, Patty?
00:02:00 Patty Shewmaker
It’s a roadmap.
00:02:02 Steve Shewmaker
A roadmap.
00:02:02 Patty Shewmaker
A roadmap.
00:02:04 Patty Shewmaker
And, you know, I think a roadmap is much more important when you have a jury, but I think it’s also helpful for a judge.
00:02:11 Patty Shewmaker
But it’s a roadmap of, okay, where are we going and how are we going to get there?
00:02:15 Steve Shewmaker
Okay.
00:02:18 Steve Shewmaker
It is certainly to inform the court or the jury about what’s about to happen.
00:02:23 Steve Shewmaker
When you think about it, judges will walk in and not know much about a case.
00:02:28 Steve Shewmaker
Maybe not much more than it’s a divorce or it’s a contract case, but they won’t know the nitty-gritty details.
00:02:34 Steve Shewmaker
I think one of you said something like the nature of the case.
00:02:36 Steve Shewmaker
You know, you said a roadmap I had written down in here.
00:02:40 Steve Shewmaker
It gives an outline of the evidence that will be presented.
00:02:43 Alexa Lewis
Yeah, it’s kind of what Jimmy said.
00:02:45 Steve Shewmaker
Yeah.
00:02:46 Steve Shewmaker
Do you make a first impression in an opening statement?
00:02:49 Patty Shewmaker
Absolutely.
00:02:50 Alexa Lewis
I think you make a first impression the second you walk in the door or the second the judge takes the bench.
00:02:55 Steve Shewmaker
I agree with you.
00:02:56 Steve Shewmaker
And if it’s just a judge, then you’re making, as most domestic matters are, if it’s just a judge, you’re making a first impression when the judge walks in and sees you.
00:03:08 Steve Shewmaker
You’re making a first impression months or years prior to that in other cases you’ve had.
00:03:14 Steve Shewmaker
So that’s true.
00:03:15 Steve Shewmaker
But
00:03:17 Steve Shewmaker
You also have a chance to make a first impression in a voir dire, a jury selection, which doesn’t happen if it’s a judge alone.
00:03:22 Steve Shewmaker
So it may not be your first opportunity to present yourself to a jury, but it is certainly the first really good opportunity.
00:03:33 Steve Shewmaker
And Pat, which one of you said a theme?
00:03:35 Speaker 6
That was me.
00:03:35 Steve Shewmaker
Yeah, a theme is a very good point because, you know, if you have a theme and you can put it out there early and it catches people, you know, it’ll stay with them.
00:03:47 Patty Shewmaker
Can we touch on that for a second?
00:03:48 Steve Shewmaker
Sure.
00:03:50 Patty Shewmaker
And we’ve talked about themes a lot.
00:03:52 Patty Shewmaker
but sometimes I find I just don’t have a theme.
00:03:57 Steve Shewmaker
Then you need to try harder.
00:04:00 Steve Shewmaker
We should just sit.
00:04:01 Alexa Lewis
Down before you go to court from now on.
00:04:03 Alexa Lewis
We’re all just workshops and themes for you.
00:04:06 Steve Shewmaker
If you’re worth $500 an hour, you’ll come up with a theme in every case, you know.
00:04:09 Patty Shewmaker
But because sometimes it’s just, I mean, sometimes the theme is obvious, right?
00:04:14 Patty Shewmaker
Sometimes the theme is pretty easy to come up with, and it’s pretty apparent from when you’re just going through the case and representing the party.
00:04:21 Patty Shewmaker
But sometimes it’s just,
00:04:24 Patty Shewmaker
It’s just, I don’t know.
00:04:25 Patty Shewmaker
Do you guys have never had that happen where you just don’t have a theme?
00:04:27 Alexa Lewis
Well, yeah, certainly.
00:04:29 Alexa Lewis
I think, obviously, obviously, every single time you go to court, you’re not going to have a theme because you could be there on motions.
00:04:34 Alexa Lewis
Like, yeah, okay, you might give a brief opening statement on motions.
00:04:38 Alexa Lewis
It’s not really applicable for the most part if you have shorter hearing or it’s not a full-blown trial.
00:04:44 Alexa Lewis
But yeah, there’s definitely the case where it’s like,
00:04:47 Alexa Lewis
I mean, it’s just a divorce.
00:04:48 Alexa Lewis
Like, that’s what we’re here for.
00:04:50 Patty Shewmaker
And there’s nothing exciting.
00:04:51 Patty Shewmaker
There’s no really bad conduct.
00:04:53 Alexa Lewis
There’s no salacious catchphrase.
00:04:56 Steve Shewmaker
You are paid to come up with a theme.
00:04:58 Steve Shewmaker
You must come up with a theme.
00:05:00 Steve Shewmaker
But that could be a subject for a separate podcast.
00:05:02 Steve Shewmaker
How to come up with a theme?
00:05:03 Alexa Lewis
Oh, I thought you were going to say how Patty sucks.
00:05:06 Steve Shewmaker
No, but the theme is certainly, the theme is certainly something that you should introduce early and often, as early as the voir dire or the opening statement, which is what we’re talking about.
00:05:17 Steve Shewmaker
today.
00:05:19 Steve Shewmaker
So let me ask you something.
00:05:21 Steve Shewmaker
I’ll give this question to Patty.
00:05:23 Steve Shewmaker
I think it’s your turn.
00:05:24 Steve Shewmaker
What’s more important, opening statement or closing argument?
00:05:28 Patty Shewmaker
Opening.
00:05:29 Steve Shewmaker
Opening.
00:05:30 Patty Shewmaker
Yeah, opening.
00:05:31 Steve Shewmaker
Why’d you say that?
00:05:33 Patty Shewmaker
Opening, and that’s generally speaking, because there are some cases where closing becomes more important.
00:05:39 Patty Shewmaker
But opening is important because it’s really your opportunity to tell the judge,
00:05:46 Patty Shewmaker
This is what’s going on.
00:05:48 Patty Shewmaker
These are the issues.
00:05:49 Patty Shewmaker
This is what we want.
00:05:50 Patty Shewmaker
This is why we want.
00:05:53 Patty Shewmaker
And the judge is, especially judge, well, even jury.
00:05:56 Patty Shewmaker
I mean, they’re making a, they’re making up, a lot of times they’re making up their mind already in an opening statement.
00:06:03 Patty Shewmaker
Closing, you know, now you might say in follow up, okay, well, when is a closing more important?
00:06:08 Patty Shewmaker
Sometimes a closing is more important or important.
00:06:12 Patty Shewmaker
when we have complex issues and we kind of need to wrap them up and kind of summarize and be like, okay, judge, let me kind of put together everything that you’ve heard and explain it to you and package it for you so you understand, to make sure you understand.
00:06:26 Steve Shewmaker
Jimmy, do you think a closing argument is more important than an opening statement or vice versa?
00:06:32 Jimmy Lewis
No, I think opening is.
00:06:35 Jimmy Lewis
Considering the number of bench trials I’ve had where judges are like,
00:06:40 Jimmy Lewis
I don’t need to hear closing.
00:06:41 Jimmy Lewis
And then you get that one attorney who’s like, judge, I’d still like to do closing.
00:06:45 Jimmy Lewis
And you’re just like, read the room, man.
00:06:47 Jimmy Lewis
Yeah, the judge clearly has made-up their mind.
00:06:53 Jimmy Lewis
I do think that a lot of times with a jury, however, yeah, you,
00:06:58 Jimmy Lewis
I still think opening is more important.
00:07:00 Jimmy Lewis
I think closing is still very important, though, because you can kind of recap everything and really kind of show, here’s why that part was important.
00:07:08 Patty Shewmaker
Yeah, tie it up with a bow for them.
00:07:09 Jimmy Lewis
But also with the jury, I think it’s very important.
00:07:12 Jimmy Lewis
If you mention something in opening, you better be damn sure you hit that during your case, because they’re going to be like, you were promised this information and we didn’t get it.
00:07:22 Steve Shewmaker
I’m going to get to that as we go.
00:07:23 Alexa Lewis
Wait, aren’t you going to ask me?
00:07:26 Patty Shewmaker
No.
00:07:27 Alexa Lewis
Okay.
00:07:27 Steve Shewmaker
I was going to say that there have been articles written and psychological studies done that go back decades that indicate that most people, most jurors make up their mind fairly early.
00:07:41 Steve Shewmaker
It doesn’t mean you can’t change somebody’s first impression, but they tend to make up their mind early.
00:07:46 Steve Shewmaker
And the opening is much closer to early than the closing.
00:07:52 Steve Shewmaker
But the nature of things is that most people tend to make up their minds fairly early.
00:07:58 Steve Shewmaker
And the evolving nature of people these days, people are expecting fast, immediate results.
00:08:04 Steve Shewmaker
Okay.
00:08:05 Patty Shewmaker
And we’ve all been in front of the judge.
00:08:07 Patty Shewmaker
There’s always that one or two judges that you go in front of.
00:08:11 Patty Shewmaker
who make snap decisions?
00:08:13 Steve Shewmaker
Yes.
00:08:13 Patty Shewmaker
And that, I mean, then the opening statement becomes like, everything, the most important thing.
00:08:19 Steve Shewmaker
Well, that’s that is an interesting point because we know some of these judges here locally that we realize you got to get there first with the most.
00:08:27 Steve Shewmaker
Who was the Civil War General who said that?
00:08:30 Steve Shewmaker
Was it Ulysses Grant or somebody?
00:08:32 Patty Shewmaker
I don’t think it was Grant, but you would know.
00:08:34 Steve Shewmaker
I can’t remember.
00:08:35 Alexa Lewis
You’re the guy.
00:08:35 Patty Shewmaker
You’re the history bug.
00:08:36 Steve Shewmaker
I can’t remember.
00:08:37 Steve Shewmaker
The.
00:08:37 Patty Shewmaker
Firstest with the mostest.
00:08:38 Steve Shewmaker
Yeah, the firstest with the mostest.
00:08:39 Steve Shewmaker
But in any event, would you agree, Alexa, that most lawyers think that the closing is more important?
00:08:46 Alexa Lewis
Yes, most lawyers think that.
00:08:48 Steve Shewmaker
Why do you think that is?
00:08:50 Alexa Lewis
Probably because they get to.
00:08:52 Alexa Lewis
argue more because opening is just a preview.
00:08:55 Alexa Lewis
It’s really not argument.
00:08:56 Alexa Lewis
And they think that closing is going to be the most important because that’s where they’re going to get to shine.
00:09:01 Alexa Lewis
They’re going to get to argue their case and, you know, argue for justice or whatever it is that they’re there to do.
00:09:06 Steve Shewmaker
Yeah, and we’re going to get to some of the differences between presenting evidence and opening and arguing and closing.
00:09:13 Steve Shewmaker
But a lot of lawyers tend to think that the last word is more impactful and the person who gets the last word is going to be more impactful.
00:09:21 Steve Shewmaker
But
00:09:22 Steve Shewmaker
Judges, as well as jurors, are human, and humans evidently, according to this research, make up their minds earlier rather than later, right?
00:09:31 Steve Shewmaker
What are you smiling about?
00:09:33 Steve Shewmaker
What do I say?
00:09:34 Alexa Lewis
Nothing.
00:09:35 Alexa Lewis
I would say, though, that
00:09:37 Alexa Lewis
I’m going to give you the lawyer answer on whether or not opening and closing is more important.
00:09:40 Alexa Lewis
I think it depends because like Jimmy said, if the other side hasn’t proven their case or they promised you something in opening that you never got to see or they said certain evidence or testimony was going to be there and then it wasn’t, that’s when closing can be extremely impactful.
00:09:54 Alexa Lewis
And especially after a lengthy trial, because I know you guys have had trials that lasted, what, 11 days over the course of like months and you’re like, hey, let’s just recap.
00:10:04 Alexa Lewis
everything from a few months ago, just so I make sure you remember.
00:10:07 Patty Shewmaker
We almost needed to do an opening statement every day we showed up.
00:10:10 Steve Shewmaker
I agree with you.
00:10:11 Steve Shewmaker
I think there are times when a closing argument becomes more important.
00:10:16 Steve Shewmaker
And I think one of them would be the length of the trial, because if somebody presents something as a promise in an opening statement and it doesn’t deliver,
00:10:24 Steve Shewmaker
the jurors may very well be apt to forget that it was ever promised.
00:10:29 Alexa Lewis
Oh, it says if it was weeks before or something.
00:10:31 Steve Shewmaker
Right.
00:10:31 Steve Shewmaker
So if you have a case where your opponent makes promises in the opening statement that they don’t deliver upon, you may want to harp on that.
00:10:38 Steve Shewmaker
Yeah, keep good notes.
00:10:40 Steve Shewmaker
Oh, yeah, keep good notes.
00:10:42 Steve Shewmaker
Another one would be if there are highly arguable facts, facts that
00:10:48 Steve Shewmaker
could, the facts that are benign, but could be argued one way or the other, there’s a lot of them, you might have to try to explain how they all come together.
00:10:56 Steve Shewmaker
Sure.
00:10:57 Steve Shewmaker
Because I think we’ve had cases before where jurors came out and said, we just didn’t know what the importance of this piece of evidence was.
00:11:02 Steve Shewmaker
We just didn’t know.
00:11:05 Steve Shewmaker
So let me move on to the next question.
00:11:07 Steve Shewmaker
An opening statement.
00:11:08 Steve Shewmaker
Jimmy, is an opening statement evidence.
00:11:10 Jimmy Lewis
No.
00:11:11 Steve Shewmaker
Okay, it’s not evidence.
00:11:12 Steve Shewmaker
Does everybody agree with that?
00:11:13 Steve Shewmaker
Okay.
00:11:14 Steve Shewmaker
Then let me ask you a question.
00:11:16 Steve Shewmaker
You’re familiar with the legal concept of opening the door to something, right?
00:11:19 Steve Shewmaker
Like presenting an argument or a piece of evidence which allows the judge or the other side to explore that to the point that it might not be beneficial to you, but you open the door to it, right?
00:11:31 Steve Shewmaker
Can you open the door by something you say in an opening statement, Patty?
00:11:35 Patty Shewmaker
Yes.
00:11:35 Steve Shewmaker
You think so?
00:11:36 Patty Shewmaker
I do.
00:11:36 Steve Shewmaker
Case law actually in Georgia says different.
00:11:39 Steve Shewmaker
You cannot open the door in
00:11:42 Steve Shewmaker
opening statement, which sounds great.
00:11:44 Steve Shewmaker
I could just say any damn thing I want in an opening statement and I’m not opening the door.
00:11:47 Steve Shewmaker
And if someone tries to say I did, I can point to, there’s a case that I could pull that actually says that.
00:11:54 Steve Shewmaker
But I would still say don’t do that thing.
00:11:57 Alexa Lewis
Well, you’re also just inviting someone to try to figure out a way to get you to open the door during your direct or something.
00:12:04 Steve Shewmaker
Maybe, possibly.
00:12:06 Patty Shewmaker
Well, yeah, because I would be inclined to look at a party and say, well, your council said this in opening, you know, then, you know, do you agree or whatever.
00:12:17 Steve Shewmaker
Okay, so how do you make a good opening statement?
00:12:22 Steve Shewmaker
Anybody.
00:12:23 Alexa Lewis
I think you tell a good story.
00:12:25 Alexa Lewis
you take the facts that you have and the evidence that you plan to present and you turn it into something, like Patty said, a roadmap that makes chronological and or logical sense.
00:12:37 Alexa Lewis
Because you don’t want to be jumping around in your opening statement about things that happened three years ago, but things that happened yesterday to where everybody’s confused.
00:12:44 Alexa Lewis
I think you provide the court or the jury with a logical,
00:12:50 Alexa Lewis
may be chronological or reverse chronological, depending on your case, order that they can follow and understand, okay, these are the things I’m going to hear.
00:12:59 Alexa Lewis
These are the things they’re telling me that they’re going to present in as much of an entertaining way as you possibly can, which goes to your whole theme.
00:13:05 Steve Shewmaker
Okay.
00:13:06 Steve Shewmaker
So you need to work out your theme and your story.
00:13:08 Steve Shewmaker
You need to know your case well before you can write your opening, right.
00:13:11 Alexa Lewis
Sure, yeah.
00:13:11 Steve Shewmaker
Okay, so you got to talk to your client, look at the evidence, figure out what your client’s goals are, and how you’re going to get there, right?
00:13:18 Steve Shewmaker
Does that sound about right?
00:13:19 Alexa Lewis
Yeah, totally fair.
00:13:20 Steve Shewmaker
Okay.
00:13:20 Patty Shewmaker
And when I do an opening, or when I draft my opening, it really, first of all, there’s a difference between an opening to a judge and an opening to a jury.
00:13:29 Alexa Lewis
100%.
00:13:30 Steve Shewmaker
What’s the difference?
00:13:34 Jimmy Lewis
The number of people looking at you.
00:13:37 Patty Shewmaker
That is true.
00:13:38 Patty Shewmaker
He’s not wrong.
00:13:39 Patty Shewmaker
That is a truth fact.
00:13:41 Patty Shewmaker
Let me try this again.
00:13:44 Steve Shewmaker
What’s the difference, Patty?
00:13:46 Alexa Lewis
Go ahead, Jimmy, be quiet.
00:13:49 Patty Shewmaker
So a jury, I think you’re more going to tell the story, like Alexis talked about, and tell the story and set the stage.
00:14:01 Patty Shewmaker
For me, with the judge, it’s more like just the facts, where usually what I typically do with the judge is, okay, here’s the background.
00:14:12 Patty Shewmaker
And the background is just enough background that the judge kind of, I was like, okay, I am oriented.
00:14:19 Patty Shewmaker
Okay, judge, and now here are the issues and go down, I go down by the issues and by the way, this is what my client wants.
00:14:25 Patty Shewmaker
And briefly, this is why my client wants what he or she wants.
00:14:29 Patty Shewmaker
And that’s really, that’s really where it’s coming in of this is what the evidence is going to show.
00:14:35 Patty Shewmaker
You know, but then even then,
00:14:40 Patty Shewmaker
depending on really kind of the posture of the case, my opening might be different.
00:14:46 Patty Shewmaker
Okay, and I’ll give you an example.
00:14:47 Patty Shewmaker
I had two, I had two hearing aids almost back-to-back, one on Thursday, and they were like sister companion cases.
00:14:57 Patty Shewmaker
The mom had a modification and the dad had a contempt.
00:15:03 Patty Shewmaker
but they all arose out of similar facts.
00:15:06 Patty Shewmaker
So we have this huge full-blown hearing on Thursday on mom’s modification, and then we come on Tuesday for dad’s contempt.
00:15:14 Patty Shewmaker
I don’t, same judge, I don’t need to do a whole full-blown opening again.
00:15:19 Alexa Lewis
They’d look at you like you were crazy if you did.
00:15:21 Patty Shewmaker
Yeah.
00:15:21 Patty Shewmaker
I mean, so it’s really kind of, you know, tailoring
00:15:26 Patty Shewmaker
the opening to kind of the posture of the case as well.
00:15:30 Alexa Lewis
I also agree with you on that, but I also think if you have a judge who heard the temporary and has heard motions and other things, when you get to the final, you don’t have to do the whole shebang you would have done if it was, the trial was the only thing the judge ever heard.
00:15:44 Patty Shewmaker
So sometimes you just have to be like, okay, all right, judge from last week’s episode.
00:15:49 Patty Shewmaker
Right, And just be like.
00:15:51 Alexa Lewis
As a continuation in this series.
00:15:53 Patty Shewmaker
Yeah.
00:15:53 Patty Shewmaker
All right, well.
00:15:55 Patty Shewmaker
And the judge hits skip recap.
00:15:57 Alexa Lewis
Yep.
00:15:58 Patty Shewmaker
On to the next episode.
00:15:59 Steve Shewmaker
Can you make argument in an opening statement?
00:16:05 Patty Shewmaker
Technically, we can.
00:16:07 Steve Shewmaker
Yeah, right, Should you argue an opening statement?
00:16:11 Jimmy Lewis
I’m probably going to.
00:16:12 Alexa Lewis
If you can get away with it a little bit, yeah.
00:16:14 Steve Shewmaker
How much should you argue an opening statement?
00:16:16 Alexa Lewis
Enough to not get an objection.
00:16:18 Steve Shewmaker
Do you agree with that, Jimmy?
00:16:20 Patty Shewmaker
Yes, you should set up your case.
00:16:21 Alexa Lewis
Yeah.
00:16:22 Steve Shewmaker
You should argue as much as you can.
00:16:24 Alexa Lewis
Absolutely.
00:16:25 Steve Shewmaker
Advocate.
00:16:26 Patty Shewmaker
We call it advocate.
00:16:26 Steve Shewmaker
Yes, there are the rules.
00:16:29 Steve Shewmaker
And then when you become experienced, you break the rules.
00:16:32 Steve Shewmaker
And when you become really experienced, you just disregard the rules completely.
00:16:36 Jimmy Lewis
And.
00:16:37 Alexa Lewis
I.
00:16:37 Alexa Lewis
Just lay on the floor.
00:16:38 Jimmy Lewis
I also had an attorney one time object during my opening and the judge was like,
00:16:43 Jimmy Lewis
I don’t know why you’re objecting.
00:16:44 Jimmy Lewis
I know this isn’t evidence.
00:16:46 Jimmy Lewis
I know he’s just arguing his case to me.
00:16:48 Jimmy Lewis
So like noted, but Mr.
00:16:51 Jimmy Lewis
Lewis, go on.
00:16:51 Alexa Lewis
As you were.
00:16:52 Steve Shewmaker
Okay, how long should your opening statement be, Jimmy?
00:16:56 Jimmy Lewis
Depends on the case, but probably not more than a couple minutes.
00:16:59 Steve Shewmaker
A couple of minutes.
00:17:00 Steve Shewmaker
What’s a couple of minutes to you?
00:17:03 Steve Shewmaker
I don’t know what that means.
00:17:04 Steve Shewmaker
That’s too short.
00:17:05 Patty Shewmaker
That’s too short.
00:17:05 Alexa Lewis
I think it depends on the case, though.
00:17:07 Steve Shewmaker
Okay, I get it.
00:17:08 Steve Shewmaker
You can’t clean your throat into your hands.
00:17:09 Steve Shewmaker
Stop.
00:17:10 Steve Shewmaker
Let Jimmy answer the question.
00:17:12 Steve Shewmaker
Stop.
00:17:13 Steve Shewmaker
Jimmy.
00:17:13 Steve Shewmaker
Jimmy, how long is the opening standing?
00:17:15 Jimmy Lewis
I think it depends on the case because here, if you have a divorce that is, you’re dealing with custody and you have a guardian and you’ve had psyche vows,
00:17:24 Jimmy Lewis
and you’re dealing with alimony and you’re dealing with property division, and there’s a number of different boxes that you need to check.
00:17:31 Jimmy Lewis
Obviously, that’s going to be a longer opening statement, depending on what you’re really trying to push.
00:17:38 Jimmy Lewis
your narratives, your arguments, what you’re requesting.
00:17:41 Steve Shewmaker
I’m objecting non-responsive.
00:17:43 Steve Shewmaker
Alexa, how long should your opening statement be?
00:17:45 Alexa Lewis
I agree with Jimmy, though.
00:17:46 Alexa Lewis
It depends on the case.
00:17:47 Alexa Lewis
If it’s a contempt case with three issues or it’s a money contempt or something, 5 minutes max.
00:17:52 Steve Shewmaker
How long should your opening be?
00:17:54 Patty Shewmaker
As long as it needs to be.
00:17:56 Steve Shewmaker
Okay.
00:17:57 Jimmy Lewis
He would be a terrible judge.
00:17:58 Steve Shewmaker
I generally feel that regardless of the length and complexity of your case, it shouldn’t be more than about 20 minutes.
00:18:07 Alexa Lewis
Jesus, if you argue a contempt in like 20 minutes in your opening statement, it’s far too long.
00:18:13 Patty Shewmaker
No, he’s like everything.
00:18:14 Patty Shewmaker
That’s like the cap on everything.
00:18:16 Alexa Lewis
Oh, I agree with that.
00:18:17 Steve Shewmaker
Yeah, everything’s too long.
00:18:17 Steve Shewmaker
In other words, do not be up there too long.
00:18:20 Steve Shewmaker
Okay.
00:18:21 Steve Shewmaker
Now, should you only cover evidence that favors your client in open sale?
00:18:26 Alexa Lewis
No, never.
00:18:27 Steve Shewmaker
Okay, everybody agrees that.
00:18:28 Patty Shewmaker
Get out ahead of that.
00:18:29 Alexa Lewis
Yep.
00:18:29 Steve Shewmaker
Get out ahead of that.
00:18:30 Steve Shewmaker
So what are you talking about, Patty?
00:18:32 Patty Shewmaker
So if there is, if there’s evidence that’s negative to your client, you know it’s going to come out, you know it’s admissible, address it in opening.
00:18:41 Jimmy Lewis
Judge, we acknowledge hookers and cocaine.
00:18:44 Jimmy Lewis
He loves them.
00:18:45 Jimmy Lewis
We get it.
00:18:46 Jimmy Lewis
Who doesn’t?
00:18:47 Steve Shewmaker
So it’s acceptable to say, to say, ladies and gentlemen, I expect in the course of this case, you will hear some things about my client
00:18:57 Steve Shewmaker
that will be presented by the other side that don’t necessarily portray my client in the best light.
00:19:02 Steve Shewmaker
We expect that you will hear this.
00:19:05 Steve Shewmaker
And we may even concede that some of these things are true, right?
00:19:09 Patty Shewmaker
Yeah, but this is, you know, but, you know, if there’s an explanation, but, you know, contrary to that, blah, blah, blah.
00:19:17 Steve Shewmaker
Yeah, you really ought to have the but.
00:19:19 Steve Shewmaker
The but is important because I think the but is the difference between malpractice and not.
00:19:23 Alexa Lewis
The but is also the reason you actually took it to trial because if it really was all that bad, you probably would say.
00:19:27 Steve Shewmaker
And my favorite, my favorite example of that ever, and maybe you guys have seen it, is that movie with Al Pacino, The Devil’s Advocate.
00:19:34 Steve Shewmaker
Remember that movie with Keanu Reeves?
00:19:36 Steve Shewmaker
And Keanu Reeves is representing
00:19:37 Steve Shewmaker
The guy played by, a guy used to play the actor in the series Coach.
00:19:43 Steve Shewmaker
What is his name?
00:19:44 Steve Shewmaker
I actually ran into him in the Dallas airport one time, but I can’t remember his name.
00:19:49 Steve Shewmaker
But Keanu Reeves is standing up there.
00:19:51 Steve Shewmaker
And his whole opening statement is, you’re going to hear some bad things about my client.
00:19:54 Steve Shewmaker
Like he was running around on his wife.
00:19:56 Steve Shewmaker
And we’re going to tell you, he’s done a lot of bad stuff too, include running around on his wife.
00:20:00 Steve Shewmaker
We don’t expect you to like him, but we want you to look at the evidence.
00:20:03 Steve Shewmaker
And then right after openings, they break and the guy wants to kick you on his ***.
00:20:06 Steve Shewmaker
And he’s like, look, if you’re out having sex with your girlfriend that night, you couldn’t be killed in your wife.
00:20:12 Alexa Lewis
Right.
00:20:13 Steve Shewmaker
So I’m conceding the bad stuff because it helps you.
00:20:16 Alexa Lewis
Yeah, it helps you.
00:20:17 Steve Shewmaker
The guy’s like, oh, and he’s like, yeah, you get it now, don’t you?
00:20:20 Steve Shewmaker
Which is a great example of what I’m talking about.
00:20:22 Alexa Lewis
Absolutely.
00:20:23 Steve Shewmaker
But yeah, you should concede bad stuff right away because you don’t want, I think one of the worst things you can do is just present all the good stuff about your client.
00:20:32 Steve Shewmaker
and not even pay any service to the bad stuff, and then it comes out from the other side.
00:20:36 Steve Shewmaker
I just think that makes you as the attorney look really, really shady.
00:20:39 Alexa Lewis
Well, and then you end up in closing with, and this is what they were trying to hide from you.
00:20:43 Alexa Lewis
This is what they didn’t want you to know, but we brought it to light today.
00:20:46 Steve Shewmaker
Right.
00:20:46 Steve Shewmaker
And that doesn’t, that doesn’t only go for bad facts, but it can be bad.
00:20:50 Speaker 6
Bad law.
00:20:51 Steve Shewmaker
No, bad law, weaknesses in your argument, things like that.
00:20:56 Steve Shewmaker
So, okay, do you make promises in your opening statement?
00:21:00 Alexa Lewis
I mean, you make statements of what you say you’re going to deliver.
00:21:03 Alexa Lewis
So yeah, you can interpret that as promises.
00:21:06 Steve Shewmaker
If you know you’re going to call a certain witness, say it.
00:21:09 Steve Shewmaker
Yeah.
00:21:09 Steve Shewmaker
If you know what that witness is going to say, then say it.
00:21:12 Alexa Lewis
Yeah.
00:21:13 Steve Shewmaker
But be careful what you promise because somebody may hold you to it, right?
00:21:17 Steve Shewmaker
Okay.
00:21:17 Jimmy Lewis
Yeah, like the bird lady from Home Alone 2 said, don’t make promises you can’t keep.
00:21:21 Alexa Lewis
There you go.
00:21:22 Steve Shewmaker
Okay.
00:21:22 Steve Shewmaker
Very relevant.
00:21:24 Jimmy Lewis
He doesn’t know what that means.
00:21:26 Alexa Lewis
He’s seen Home Alone 2.
00:21:27 Steve Shewmaker
I have seen Home Alone 2.
00:21:28 Steve Shewmaker
It’s not one of my favorites.
00:21:30 Alexa Lewis
Everyone remembers the first lady.
00:21:31 Patty Shewmaker
It was a very random reference.
00:21:34 Patty Shewmaker
So that’s why we’re like, okay.
00:21:36 Steve Shewmaker
But some attorneys may get confused and some clients may get confused.
00:21:40 Steve Shewmaker
You know, technically speaking, you’re supposed to say in the opening, well, I’m going to be back.
00:21:46 Steve Shewmaker
Let me stop myself.
00:21:48 Steve Shewmaker
Can you ask for things in the opening statement?
00:21:52 Patty Shewmaker
Yeah.
00:21:52 Patty Shewmaker
Yes.
00:21:53 Patty Shewmaker
I tell the judge, this is what we want.
00:21:55 Patty Shewmaker
These are the issues and this is what we want.
00:21:57 Patty Shewmaker
This is what we’re going to ask you to do, judge.
00:21:59 Alexa Lewis
And I also ask that they pay attention to certain facts or then that’s kind of a jury thing too, is that I ask that you pay attention when this person is talking or when this evidence comes in or whatever, because I expect it will show XYZ.
00:22:11 Steve Shewmaker
Yeah.
00:22:11 Steve Shewmaker
I like to say the same thing.
00:22:12 Steve Shewmaker
I said, pay particular attention when this witness testifies, because they’re going to tell you this thing, this thing, and this thing, which is important.
00:22:20 Steve Shewmaker
But a kind of a good example, as I was writing the outline for this podcast, I thought, what’s a good example of facts versus argument?
00:22:30 Steve Shewmaker
and one.
00:22:32 Jimmy Lewis
Let me back up to the asking thing.
00:22:35 Jimmy Lewis
So a lot of times with my openings, I’ll structure it as here’s this much kind of background information and here’s what we’re asking for and why.
00:22:44 Alexa Lewis
Can you structure your stories like that from now on?
00:22:48 Jimmy Lewis
Your commentary is not.
00:22:51 Alexa Lewis
I’m pretty sure the other two people at this table would appreciate if you would also structure your stories like that.
00:22:55 Steve Shewmaker
You know, an example I came up with is it was a DUI stop.
00:22:59 Steve Shewmaker
The facts that would come in, you know, would be, all right, you know, the government would say, you know, Jimmy was speeding.
00:23:06 Steve Shewmaker
He was stopped because he was speeding.
00:23:08 Steve Shewmaker
And he ran a red light, and he was weaving.
00:23:10 Steve Shewmaker
So he was speeding, he ran a red light, he was weaving.
00:23:13 Steve Shewmaker
When the officer walked up to Jimmy, Jimmy, the officer’s going to tell you that Jimmy smelled of beer.
00:23:20 Steve Shewmaker
The officer’s also going to tell you that when he tried to speak to Jimmy, Jimmy did speak to him and Jimmy’s speech was slurred.
00:23:26 Steve Shewmaker
We’re going to ask you to convict him of DUI.
00:23:29 Steve Shewmaker
Okay, so we’re telling you what the facts are.
00:23:31 Steve Shewmaker
We’re going to ask you to convict him.
00:23:34 Steve Shewmaker
Is any of that not permissible in an opening statement?
00:23:38 Speaker 6
It’s all fine.
00:23:39 Steve Shewmaker
Yeah, it’s all fine.
00:23:39 Steve Shewmaker
It’s all fine.
00:23:40 Steve Shewmaker
Now, the counter
00:23:42 Steve Shewmaker
opening statement from the other side could be something like this.
00:23:48 Steve Shewmaker
The other side may say, okay, he, Jimmy, was at a party.
00:23:56 Steve Shewmaker
And you will hear that from other witnesses that Jimmy had not drunk any alcohol.
00:24:01 Steve Shewmaker
And you will hear that somebody spilled a beer on Jimmy, which is what led him to leave the party because he wanted to go home and change.
00:24:08 Steve Shewmaker
You will also hear that Jimmy had a babysitter who had to leave at a certain time, and Jimmy was rushing home to get there on time for that babysitter.
00:24:18 Steve Shewmaker
You will also see some evidence that Jimmy had dental surgery earlier that day, for which he could not drink alcohol that night, and it affected his ability to speak.
00:24:29 Steve Shewmaker
So these are the facts that we will present to you.
00:24:33 Steve Shewmaker
We will
00:24:34 Steve Shewmaker
we will ask you to look at these facts and conclude that Jimmy was not driving under the influence and acquit him.
00:24:40 Steve Shewmaker
Okay.
00:24:41 Steve Shewmaker
Now, would that all be proper in an opening statement?
00:24:44 Steve Shewmaker
That’s fine.
00:24:44 Steve Shewmaker
Okay.
00:24:45 Steve Shewmaker
Now, what if the defense said in an opening statement, you’re going to see some evidence that he had dental surgery and that could have caused his speech to be slurred.
00:24:57 Steve Shewmaker
And we’re going to ask you not to convict him because his speech was slurred because of the dental surgery.
00:25:03 Steve Shewmaker
Does that become more argumentative?
00:25:04 Alexa Lewis
That’s more argumentative.
00:25:05 Alexa Lewis
Yeah.
00:25:06 Steve Shewmaker
So the way you present these things can affect whether or not it’s argumentative or not.
00:25:10 Steve Shewmaker
But so I just kind of came up with that as an example.
00:25:13 Steve Shewmaker
Would you all agree with that?
00:25:14 Patty Shewmaker
Yeah, I think it’s a good example.
00:25:16 Patty Shewmaker
Well done.
00:25:16 Steve Shewmaker
All right.
00:25:17 Steve Shewmaker
Now, I think we touched on this earlier, but should you keep track of what the other side says in their opening statement?
00:25:23 Steve Shewmaker
Yes.
00:25:23 Steve Shewmaker
Can you just take notes?
00:25:24 Alexa Lewis
Yes.
00:25:25 Steve Shewmaker
Okay.
00:25:25 Steve Shewmaker
Why is that?
00:25:26 Alexa Lewis
So you can point back later at closing and say, this is what they told you and this is what they didn’t prove.
00:25:30 Steve Shewmaker
I agree with you, Alexa.
00:25:31 Steve Shewmaker
Is that the only reason?
00:25:32 Alexa Lewis
No.
00:25:33 Alexa Lewis
I think you want to pay attention to what the other side’s roadmap is as well, because you want to, it’s going to help you organize.
00:25:41 Alexa Lewis
how you’re dealing with their case, because you’re still responding to their case throughout the entirety of your case.
00:25:46 Alexa Lewis
You’re cross-examining their witnesses, things like that.
00:25:48 Alexa Lewis
They tell you what one of their witnesses is going to say.
00:25:51 Alexa Lewis
Great, I’m going to write that down because if number one, if their witness doesn’t say it, I’m going to argue about it later.
00:25:55 Alexa Lewis
Number 2, I’m going to figure out how I’m going to deal with what their witness is allegedly going to say.
00:26:00 Patty Shewmaker
Yeah, you might preempt it.
00:26:01 Patty Shewmaker
If they give you kind of a preview, you’d be like, oh, I need to address that with my client when he’s on the stand before they get to it.
00:26:08 Steve Shewmaker
Oh, yeah.
00:26:10 Steve Shewmaker
Occasionally is the time I hear something in an opening, I look at my client and I say, that was a surprise.
00:26:14 Steve Shewmaker
I didn’t know that was coming out.
00:26:16 Alexa Lewis
You didn’t tell me that.
00:26:18 Steve Shewmaker
Yeah, I know.
00:26:19 Steve Shewmaker
But anyway, let me ask you this.
00:26:20 Steve Shewmaker
Can you turn, is there any way you can turn what is said in opening into evidence?
00:26:28 Patty Shewmaker
Well, kind of like what I said, you know, your counsel said this.
00:26:31 Patty Shewmaker
Do you agree with what your counsel said?
00:26:33 Steve Shewmaker
That is precisely what I write.
00:26:35 Steve Shewmaker
The opening may not be evidence, but you can turn it into evidence.
00:26:38 Steve Shewmaker
How?
00:26:39 Steve Shewmaker
Your attorney said this in opening.
00:26:42 Steve Shewmaker
Would you agree with what your attorney said?
00:26:44 Steve Shewmaker
Most of the time, they’re going to go, yes, I agree.
00:26:46 Alexa Lewis
There is that one time when they say they don’t.
00:26:49 Steve Shewmaker
Well, that is, I don’t remember what time that was, do you?
00:26:51 Alexa Lewis
We’ll talk about it later.
00:26:52 Alexa Lewis
I do.
00:26:53 Steve Shewmaker
It’s not.
00:26:53 Alexa Lewis
It wasn’t us.
00:26:53 Alexa Lewis
It wasn’t us.
00:26:54 Steve Shewmaker
It wasn’t us.
00:26:55 Steve Shewmaker
And is it not permissible for the podcast?
00:26:57 Alexa Lewis
It was, no, we’ll talk about it later.
00:27:00 Steve Shewmaker
Okay.
00:27:00 Alexa Lewis
You’ll remember it, I promise.
00:27:02 Steve Shewmaker
Okay.
00:27:02 Steve Shewmaker
Well, you know, you can say, and there’s different ways to do it.
00:27:04 Steve Shewmaker
You can say to a witness on the stand whose words are evidence.
00:27:08 Steve Shewmaker
You could say things like,
00:27:09 Steve Shewmaker
your attorney said this in the opening.
00:27:11 Steve Shewmaker
Did your attorney get that right?
00:27:14 Steve Shewmaker
Was your attorney correct?
00:27:16 Steve Shewmaker
Well, what about this piece of evidence?
00:27:18 Steve Shewmaker
Wouldn’t that contradict what your attorney said?
00:27:20 Steve Shewmaker
So now what you’re doing is you’re turning those words into evidence.
00:27:24 Steve Shewmaker
And I love to do that because attorneys say it isn’t so.
00:27:28 Steve Shewmaker
It’s so.
00:27:29 Steve Shewmaker
Attorneys will shoot their mouths off in opening statements.
00:27:33 Steve Shewmaker
And they will say stuff that I’ll be sitting there going, wow, I can’t believe they said that.
00:27:37 Steve Shewmaker
And then I’ll go to them and say, you know, he said this.
00:27:40 Steve Shewmaker
Is that true?
00:27:42 Steve Shewmaker
So anyway.
00:27:42 Alexa Lewis
Really comes down to knowing your case.
00:27:44 Steve Shewmaker
Yeah.
00:27:44 Steve Shewmaker
Would you say opening statements more about art or science?
00:27:50 Patty Shewmaker
It’s a combination.
00:27:51 Alexa Lewis
Yeah, it’s a mix of both, for sure.
00:27:53 Steve Shewmaker
Over the years, has your experience changed the way you look at opening statements?
00:28:00 Patty Shewmaker
Yeah.
00:28:02 Steve Shewmaker
Tell me how?
00:28:02 Patty Shewmaker
Because when you’re a new attorney, you think the opening statements are boring and you went to the closing argument.
00:28:07 Patty Shewmaker
Yeah, it’s fun and it’s exciting.
00:28:09 Patty Shewmaker
And then as you get older, you start to care more about the opening statement and less about the closing.
00:28:15 Steve Shewmaker
I do agree with that.
00:28:16 Alexa Lewis
Yeah.
00:28:17 Steve Shewmaker
Well, what are some of your best stories about opening statements that y’all can remember?
00:28:22 Steve Shewmaker
Anybody.
00:28:22 Alexa Lewis
So Haley and I’s jury trial, she was tasked with doing the opening statement.
00:28:28 Alexa Lewis
Opposing counsel got up.
00:28:29 Alexa Lewis
It was his case.
00:28:29 Alexa Lewis
He did his opening statement.
00:28:31 Alexa Lewis
And general rule, you don’t really want to object in somebody’s opening, but this was in front of a jury.
00:28:37 Alexa Lewis
And he started going into things that were completely irrelevant for purposes of the jury trial.
00:28:41 Alexa Lewis
It was a very narrow issue.
00:28:43 Alexa Lewis
So we object in the opening statement twice because he wouldn’t stop.
00:28:47 Alexa Lewis
So then Haley gets up to give our opening statement, which she’d now pared down from what she’d prepared because it was lengthy, but
00:28:56 Alexa Lewis
It didn’t need to be, first jury trial, want to be a little over-prepared.
00:29:00 Alexa Lewis
So she starts her opening statement, and in the middle of opening statement, opposing counsel sure as **** objects, for no apparent reason, except that she was explaining the law, which of course is perfectly permissible in an opening statement, what the law is.
00:29:15 Steve Shewmaker
If you did it correct.
00:29:16 Alexa Lewis
Correct, which she absolutely was.
00:29:18 Alexa Lewis
And then the judge had to instruct him basically to sit down and shut up.
00:29:23 Alexa Lewis
It was quite entertaining.
00:29:24 Patty Shewmaker
One of my favorite opening statement stories, and you talk about making that first impression, and yeah, opening statements aren’t evidence, but I mean, I think this is a temporary hearing.
00:29:34 Patty Shewmaker
And I’m going through, okay, this is the background, these are the issues, this is what the evidence is going to show, and judges, this is what we’re going to ask you to do.
00:29:43 Patty Shewmaker
And the judge just interjects and looks at the other side and says, why is what she’s saying, why is that not true?
00:29:52 Patty Shewmaker
Would you respond to that?
00:29:53 Patty Shewmaker
Why I had that?
00:29:54 Steve Shewmaker
Happened before, too, in front of a jury.
00:29:56 Patty Shewmaker
And you’re like, and you’re like, O.K., my work here is done.
00:30:00 Patty Shewmaker
I had that, and we just had only gotten through opening.
00:30:03 Steve Shewmaker
How about you, Jimmy?
00:30:04 Steve Shewmaker
Any great opening statement stories?
00:30:08 Patty Shewmaker
No.
00:30:09 Jimmy Lewis
Honestly, none right off the top of my head.
00:30:12 Jimmy Lewis
I mean, I can think of one.
00:30:14 Jimmy Lewis
It was last May in front of a judge who is senior status now that
00:30:22 Jimmy Lewis
case is still ongoing, so I’m not going to talk about anything really with it.
00:30:27 Jimmy Lewis
But I said like 2 words and he kind of did the same thing that you said.
00:30:32 Jimmy Lewis
And he just started basically parading the other side and was like, what?
00:30:40 Jimmy Lewis
wasn’t any of that brought up?
00:30:41 Alexa Lewis
But you know what that says to both of your credibility is that the words you are putting out there in front of these judges who know who you are and respect what you say,
00:30:50 Alexa Lewis
believe that what you’re telling them, you’re going to be able to prove.
00:30:54 Alexa Lewis
Like what you’re saying in your opening statement is likely what’s going to come out.
00:30:58 Alexa Lewis
So that means your reputation in front of those judges is very good.
00:31:03 Patty Shewmaker
Okay, we’ll take that.
00:31:05 Alexa Lewis
Well, it’s true.
00:31:05 Patty Shewmaker
I’ll.
00:31:06 Steve Shewmaker
Accept that.
00:31:07 Steve Shewmaker
Anybody got any other good first?
00:31:09 Patty Shewmaker
What’s your favorite opening statement today?
00:31:13 Steve Shewmaker
Okay, one of them was when I watched.
00:31:14 Steve Shewmaker
It was a case I had assisted in the preparation of, but I didn’t have a speaking role.
00:31:20 Steve Shewmaker
And it was at Fort Hood, Texas.
00:31:22 Steve Shewmaker
It was a military trial.
00:31:23 Steve Shewmaker
And a private defense attorney was defending a soldier, and the government was prosecuting him.
00:31:30 Steve Shewmaker
And I don’t even remember what he was being prosecuted for.
00:31:32 Steve Shewmaker
It doesn’t matter.
00:31:35 Steve Shewmaker
Prior to the opening statement, there was a heck of a lot of argument, because the defense attorney had decided
00:31:41 Steve Shewmaker
that she was going to present a PowerPoint presentation and opening, which is completely permissible.
00:31:46 Steve Shewmaker
It’s a vehicle you can use as long as you follow the rules we’ve talked about.
00:31:50 Steve Shewmaker
But she was going to play a clip of a movie and argue some bullet points about the similarity of this movie to this case.
00:31:58 Steve Shewmaker
And they argued back and forth about the permissibility of this particular tactic.
00:32:05 Steve Shewmaker
And the military judge finally raised his hand and said, wait a minute,
00:32:10 Steve Shewmaker
you have elected a bench trial, which is just me, no jury.
00:32:13 Steve Shewmaker
What is the name of this movie?
00:32:15 Steve Shewmaker
And the defense attorney said, you know, it’s such and such movie.
00:32:18 Steve Shewmaker
And he said, well, I’ve never seen this movie, so it will be lost on me, which I just chuckled and thought, you know, you need to know your audience.
00:32:29 Steve Shewmaker
And if you’re asking them to watch a movie or remember a movie they’ve never heard of, then you just wasted a whole bunch of time.
00:32:38 Steve Shewmaker
Yeah, that’s one story.
00:32:40 Steve Shewmaker
The other one actually did involve me.
00:32:43 Steve Shewmaker
There is a technique that I have not been to the Jerry Spence Litigation School.
00:32:49 Steve Shewmaker
Maybe one day I’ll find the time and the money to go.
00:32:52 Steve Shewmaker
But I am advised that one of the techniques they teach there is what’s called a first person opening.
00:32:57 Steve Shewmaker
Are any of you familiar with it?
00:32:59 Steve Shewmaker
No.
00:33:00 Steve Shewmaker
Jimmy, no.
00:33:01 Alexa Lewis
I can imagine what it is.
00:33:02 Steve Shewmaker
A first person opening is when you stand up and make an opening statement
00:33:06 Steve Shewmaker
as one of the parties.
00:33:08 Steve Shewmaker
And it is kind of argumentative in its nature.
00:33:11 Alexa Lewis
It feels weird.
00:33:12 Steve Shewmaker
But in this particular case, I was defending A Marine Corps colonel who had been accused of inappropriate touching and conduct with a…
00:33:21 Steve Shewmaker
And you did this?
00:33:22 Steve Shewmaker
Yes, with a female.
00:33:23 Steve Shewmaker
And this was at one of these joint civilian military assignments where you work around civilians.
00:33:32 Steve Shewmaker
So a bunch of them had gone out drinking the night before, and this girl had drunk too much too early on an empty stomach and evidently was embarrassing herself and throwing up and carrying on.
00:33:43 Steve Shewmaker
So this colonel, defying all common sense that I would have heard of, decided to take her home in a car by himself.
00:33:50 Steve Shewmaker
Now, to his credit, he did have another member of the party following them in a car, but he was alone in the car with this girl.
00:33:56 Steve Shewmaker
Well, this girl accused him of groping her and touching her and being inappropriate.
00:34:02 Steve Shewmaker
And when I spoke to him and looked at the evidence, I was like, okay, the motivation here is that she embarrassed herself and she needed to take the focus off of her.
00:34:14 Steve Shewmaker
She needed to put the focus on anybody but her so that she could basically be able to walk into work the next week and stay safe and hold her head up high.
00:34:24 Steve Shewmaker
So I did an opening statement where I came in very emotionally.
00:34:28 Steve Shewmaker
I did it all on my feet and I just said, oh, I’m Ms.
00:34:32 Steve Shewmaker
So-and-so.
00:34:33 Steve Shewmaker
I’ve, oh my God, I can’t believe what I just did.
00:34:35 Steve Shewmaker
I just threw up at this party and I don’t remember what I did.
00:34:38 Steve Shewmaker
And I inappropriately touched a man, another person was there.
00:34:41 Steve Shewmaker
I can’t believe I did that.
00:34:43 Steve Shewmaker
And then I was in the car and I can’t remember everything clearly, but he was driving me home.
00:34:47 Steve Shewmaker
He was taking care of me.
00:34:49 Steve Shewmaker
And then the next thing I know, I wake up at home and the sun’s on my face and I feel bad and I’m just sitting here thinking about what I did the night before.
00:34:57 Steve Shewmaker
How can I ever go to work?
00:35:00 Steve Shewmaker
It wasn’t my fault.
00:35:01 Steve Shewmaker
I have to blame somebody else.
00:35:03 Steve Shewmaker
I have to do this.
00:35:04 Steve Shewmaker
And that was the opening statement.
00:35:05 Steve Shewmaker
It’s called the first person opening.
00:35:08 Steve Shewmaker
I have yet to do that in a domestic case, but I’ve been tempted to a few times and I think I’m going to.
00:35:15 Alexa Lewis
I like the 2026 goal.
00:35:19 Steve Shewmaker
Maybe.
00:35:19 Steve Shewmaker
2026, maybe 2027.
00:35:22 Steve Shewmaker
you can’t force these things.
00:35:24 Steve Shewmaker
You have to find the right case.
00:35:26 Steve Shewmaker
If you, I mean, this is a really cutting edge, aggressive technique.
00:35:32 Steve Shewmaker
I mean, it’ll, you know, judges will say, I want, I don’t want to turn away opening statements.
00:35:37 Steve Shewmaker
Because in divorce cases, you tend to be like, judge,
00:35:39 Steve Shewmaker
The parties have been married this long.
00:35:41 Steve Shewmaker
They have this many kids.
00:35:42 Steve Shewmaker
These are the incomes you’re going to hear about.
00:35:44 Steve Shewmaker
The issues in this case are A, B&C.
00:35:46 Steve Shewmaker
We’re going to ask you to do this, and this.
00:35:48 Steve Shewmaker
There may be some evidence of bad conduct or salacious activity.
00:35:52 Steve Shewmaker
We’ll tell you what that evidence is.
00:35:53 Steve Shewmaker
And at the end, we’re going to ask you to do this.
00:35:55 Steve Shewmaker
It’s really rather bland.
00:35:57 Steve Shewmaker
It is.
00:35:57 Steve Shewmaker
But judges expect that, and they need that roadmap.
00:36:01 Steve Shewmaker
So every once in a while, the judge would say, you know what?
00:36:04 Steve Shewmaker
I could use some dish.
00:36:05 Steve Shewmaker
I could use something that that mixes it up.
00:36:09 Steve Shewmaker
If you want to mix it up that way, that’s great.
00:36:11 Steve Shewmaker
As long as you have the right case.
00:36:13 Steve Shewmaker
If you have a run-of-the-mill case, there’s no reason to go over the top.
00:36:17 Steve Shewmaker
It requires the right case.
00:36:19 Steve Shewmaker
So I’ll challenge the three of you to think about that.
00:36:22 Steve Shewmaker
First person opening is a real thing.
00:36:24 Alexa Lewis
Interesting.
00:36:24 Patty Shewmaker
I don’t know if I can pull it off.
00:36:26 Patty Shewmaker
Sometimes that’s personality.
00:36:27 Steve Shewmaker
Maybe so.
00:36:29 Patty Shewmaker
Interesting.
00:36:30 Patty Shewmaker
Well, I like it.
00:36:31 Steve Shewmaker
Anyway, opening statements are extraordinarily important.
00:36:34 Steve Shewmaker
You need to really put your heart into it and use your judgment properly.
00:36:39 Steve Shewmaker
Do you think that at this firm we do that?
00:36:42 Alexa Lewis
I think so.
00:36:42 Alexa Lewis
I’d like to think so, yeah.
00:36:44 Steve Shewmaker
Have you ever run your opening statement by somebody else in the firm?
00:36:48 Steve Shewmaker
Who?
00:36:49 Alexa Lewis
Probably all three of you over the course of the last almost 13 years.
00:36:53 Steve Shewmaker
Yeah, how about you, Jimmy?
00:36:55 Jimmy Lewis
No.
00:36:57 Steve Shewmaker
Jimmy’s just out there flapping doing his thing.
00:37:00 Jimmy Lewis
I’d drive her crazy at home.
00:37:03 Jimmy Lewis
It’ll be.
00:37:03 Alexa Lewis
I’m a member of this firm, am I not?
00:37:05 Jimmy Lewis
Well, yes, but it’ll be.
00:37:08 Jimmy Lewis
And I’m like, hey, what do you think about this?
00:37:10 Jimmy Lewis
And she just, yes on this, yes on this, no on that.
00:37:18 Steve Shewmaker
And I woke Patty up one time at like 3:00 in the morning to get her to read a paragraph of my first year law school brief that I had to write.
00:37:27 Steve Shewmaker
And she’s so frustrated and she looked at it and she goes, it’s fine.
00:37:30 Steve Shewmaker
I was like, and then I yell at her, you didn’t even read it.
00:37:33 Steve Shewmaker
She’s like, it’s 230 in the morning.
00:37:36 Speaker 6
You didn’t even read it.
00:37:37 Steve Shewmaker
I was like, don’t you don’t you care about me?
00:37:39 Steve Shewmaker
She’s like, no, I don’t.
00:37:40 Steve Shewmaker
Don’t you care about your future?
00:37:41 Steve Shewmaker
Not right now.
00:37:42 Alexa Lewis
Not right now at 2:00 in the morning.
00:37:43 Alexa Lewis
She’s.
00:37:43 Steve Shewmaker
Laughing, but she remembers this.
00:37:45 Patty Shewmaker
I do remember this.
00:37:45 Alexa Lewis
Of course she remembers it.
00:37:47 Alexa Lewis
was 2:00 in the morning.
00:37:47 Alexa Lewis
She was like, what the hell are you waking me up for?
00:37:49 Alexa Lewis
And I’m like, I’m like, you’re like, you’re like, turn the light on, dude.
00:37:53 Alexa Lewis
No, he did.
00:37:53 Alexa Lewis
That’s the problem.
00:37:54 Patty Shewmaker
You can’t even see.
00:37:57 Steve Shewmaker
That’s how intimidated I was by Wendy Hensel, my first-year writing professor, who later became the Dean of Georgia State Law School, Dean of Georgia State, and is now the Dean of the University of Hawaii.
00:38:07 Steve Shewmaker
In fact, I’m going to make sure she hears this podcast.
00:38:09 Alexa Lewis
Yeah, I adore her.
00:38:10 Steve Shewmaker
Hi, Wendy.
00:38:12 Steve Shewmaker
All right, anything else about opening statements before we adjourn?
00:38:14 Alexa Lewis
Before we close, let’s just close it out.
00:38:16 Steve Shewmaker
Closing it out.
00:38:17 Steve Shewmaker
Go ahead and close it out, Patty.
00:38:18 Patty Shewmaker
All right, thanks for joining us.
00:38:32 Narrator
That’s it for this episode of Lawyers Without Billboards.
00:38:36 Narrator
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00:38:46 Narrator
For more resources or to get in touch with us, visit Shewmakerandlewis.com.
00:38:51 Narrator
Thanks for listening and we’ll see you next time.