THE ADVANTAGE OF ADVOCATING EARLY
Once people make up their mind it is extremely hard to change it. Studies have shown that upwards of 80% of jurors make up their mind after opening statements. Similarly, appellate judges routinely admit that they rarely change their minds after oral arguments. Therefore, whoever can persuade the judge/jury first will put the difficult task on opposing counsel to change their mind.
YOUR MOTION IS YOUR BEST CHANCE TO WIN YOUR MOTION
Many lawyers take the position that you should file “bare bone motions” in order to not tip your hand to the prosecutor, and not to do their work for them. Very rarely, if ever, is this a good tactic to employ. Almost all judges will have a good idea of how they are going to rule on a motion before they walk into the courtroom (at best the judge will know what they’re looking for at the hearing). Judges are certainly justified in taking this approach, as it is exponentially more difficult to rule on a issue on the spot, unless the judge already has knowledge of that issue.
A well written motion has the additional advantage of enhancing the lawyer’s credibility (Aristotle claimed that the speaker’s credibility (ethos) was the most important mode of persuasion). Also your preparation, professionalism, and candor will likely be noticed by the court. Therefore, your best opportunity to win your motion is in the motion itself.
As cited above, many studies show that upwards of 80% of jurors make up their mind after opening statements. Therefore, it is important not to hold too much back during your opening statement. Many attorneys don’t give a strong opening because they don’t want to tip their hand or lock themselves into certain facts. However by the time the defense attorney puts on his case the jury may have already made up their mind, and now you are faced with the difficult task of trying to change it.
Since many people form their opinions early on, by the time you reach closing arguments there is a strong possibility jurors have already made up their mind. Therefore, as a defense attorney you might consider the following two goals in closing arguments:
1) MOTIVATE YOUR JURORS: At the end of the case the jurors will go back to deliberate with each other. Therefore, your primary goal will likely be to motivate the jurors already on your side, and give them tools to persuade other jurors that your client is not guilty. If you have ever had a jury come back deadlocked, or deliberate for over an hour you know how important this is.
2) SIMPLIFY AND ARGUE THE CASE: A secondary, but still important goal is to simplify your case and argue it to the jury. Unless you have a strong new argument, this is likely less important than the previous goal of motivating the jury. This is because the jury has heard your opening statement (hopefully you gave a strong opening), followed by the evidence at trial. Therefore by the time closing arguments come around, the jury should have a good idea what your argument is about. However attorneys should still try to simplify and argue their case to the jury as much as possible. Since there are 6 of them they will likely remember more than you think.
These are just general rules, and like many other general principles, there will be situations that warrant deviating from them. However in most instances you should try to persuade the judge/juror to your side of the case as soon as possible to avoid the difficult task of trying to change their mind.