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ARGUMENTS BEGAN AND ENDED IN 38 STUDIOS MOTION TO DISMISS: NO “OPENING ARGUMENTS”

250px-Kingdoms_of_Amalur_Reckoning_coverIt is being widely reported that the Providence Journal reported that Opening Arguments began in the Rhode Island case against 38 Studios, the producer of Kingdoms of Amalur. Nerds in Court previously covered the story here though little progress has been made other than repeated attempts by the 14 Defendants, including former star pitcher Curt Schilling, to have the case dismissed.

In fact, the Providence Journal only reported that “Lawyers Begin Arguments.”

The phrase “Opening Arguments” is something of a mistake, found more in TV and movies than real life. Most jurisdictions have a process of trial where there are Opening Statements and Closing Arguments.

As lead trial attorney, once the jury has been sworn, before evidence is presented, you can make an Opening Statement. It is not really supposed to be argumentative in nature. It is something of a preview or overview. “You are going to hear from witness John Smith, who will tell you A, B, and C. You are going to see Document 1 that shows D and E.” Granted, it gives the attorney the chance to present the facts in the way they want and shape the narrative somewhat, but outright arguments during Opening Statements are going to be shut down by the judge. You can really only refer to evidence you have a good faith belief will be admissible and presented to the jury. Besides, it is not bueno to tell the jury they are going to hear from John Smith and then they don’t.

After all the evidence has been presented and both sides have closed their case, before jury deliberations, you can make a Closing Argument. NOW the attorney can talk about how the evidence presented ties into the law. “You’ll see in your jury instructions that the first element of this tort is X. Well, the testimony of John Smith on A, B, and C, clearly shows that this first element is met.” And so on. This is where you can make your arguments to the jury, tying facts in evidence to the applicable law.

So, Opening Statements and Closing Arguments. No Opening Arguments, since no evidence has been presented to the jury yet. Again, Opening Arguments is something you’ll hear in movies and TV, but not real life law stuff so much. [Some jurisdictions might allow some limited argumentation before presenting evidence, though it is rare, very brief, and probably not called Opening Arguments].

The problem is that even saying “Opening Arguments” implies, particularly to the layperson, that a trial has begun. A review of the Rhode Island Superior Court Calendar for the following day shows that Judge Michael A. Silverstein has 10 motion hearings set and no trial on calendar. In fact, next Monday, Judge Silverstein has a trial on calendar in an unrelated case. Furthermore, the Providence Journal would have most likely said, “Trial Begins” if trial was beginning. It appears actually that it was just another hearing on a Motion to Dismiss the case, which may or may not be successful.

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About Nerds in Court

John G. Nowakowski, Esq. (LLMT), is a graduate of the University of San Diego School of Law, and is licensed to practice law in California and Nevada. Christina R. Evola, Esq. is a recent graduate of the University of San Diego School of Law where her studies focused on intellectual property, antitrust, and media law. She is a lifelong gamer and avid cosplayer. DISCLAIMER: ‘Nerds in Court’ is for entertainment purposes only. Nothing should be construed as legal advice, or any advice for that matter, and no attorney-client relationship is formed by reading these posts. Do not consider information provided here as a substitute for obtaining legal advice from a qualified, licensed attorney in your state.

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