It's done to hold the opposing lawyer accountable for his promises to the jury!
You might think a trial attorney would be better served by listening to his opponent instead of taking notes.
Some people argue that when you take notes, you miss a lot because you're focused on your notetaking instead of what's being said.
Here's what I mean...
You've brought a lawsuit against your doctor.
You claim his carelessness, his negligence, caused you harm.
You claim that your injuries are permanent.
Your doctor denies all your claims.
He says "I'll see you in court and by the way, we're never going to settle this case!"
That means in about two years your case will finally come on for trial.
Two years later, your case actually comes up for trial.
Your lawyer has picked a jury.
Trial starts today.
The jury is there.
Six members of the community who have said they can be fair and impartial.
There are also extra jurors who have been selected in case one of the first six jurors cannot continue with their jury service.
You and your attorney are there.
The defense lawyer is there in court.
The judge is there as well as the court stenographer.
The judge welcomes the jury and gives them preliminary instructions on what to expect during your trial.
After he's done, he turns to your lawyer and say "Counselor, you may begin your opening arguments."
During your attorneys' opening arguments, you notice that the defense lawyer is taking notes from time to time.
He's writing stuff down on his yellow legal pad.
You wonder why.
After a while, your lawyer is finished and the trial judge turns to the defense lawyer.
"Counselor, you may proceed with your opening arguments."
During the defense lawyers' opening arguments you notice that your lawyer also, from time to time, is taking notes on his yellow legal pad.
You wonder why.
Why wouldn't the attorneys just be paying attention to what their opponent is saying?
Here's why...
An attorney will make notes during opening argument to record certain promises that the opposing lawyer has made to the jury.
"Ladies and gentlemen, we will show you that the doctor violated the basic standard of medical care. We will show you that we are more likely right than wrong that this doctor was careless. In fact, we will be bringing in our medical expert, Dr. Know-it-All to tell you that this doctor was wrong."
Why would the defense lawyer make a note of this?
Because at the end of the trial, he wants to hold your lawyer accountable for what he promised.
He wants to make sure he lived up to his promise to the jury that he would prove what he claimed he would.
If by some chance your lawyer has failed to live up to his promise, then you can be sure the defense lawyer will highlight that fact to the jury during his closing arguments. "Ladies and gentlemen...the plaintiff's attorney made certain promises to you at the beginning of this case. He specifically told you that he would show you that my client, the good and warm-hearted Dr. Do-Good, didn't do what he was supposed to.
That was his promise to you?
Well, did he do that?
Did he show you that? Actually, he didn't. Let's look and see what he tried to show, but was unable to do so...
Likewise, when your attorney makes some notes during the defense lawyer's opening arguments, he's also keeping track of those promises the defense is making. "We will show you that Dr. Do-Good treated this patient appropriately..."
During closing arguments, your lawyer will point out to the jury that the defense has failed to live up to his promises that he made to the jury at the beginning of your trial. "My opponent promised to show you that Dr. Do-Good did what he was supposed to. Where was his proof? Where were his experts to show you this? I didn't see any. Did you? What evidence did he present to support this claim?"
It's really a way to remember those promises that your opponent has made and allows an attorney to hold the other accountable for what he's promised compared to what he's actually proven during trial.
