By Dr. Ken Broda-Bahm:
I have a few pet peeves. Some relate to language (don't say "literally" when you mean "figuratively," and don't say "jive" when you mean "jibe"). Those I can live with. But a larger pet peeve that I have trouble living with relates to demonstrative exhibits in the opening statement. Or, more specifically, it relates to how frequently and how easily good demonstratives are yanked out of an opening statement because they are "too argumentative." Listening to opposing counsel playing the "argumentative" card, I feel like repeating that line from The Princess Bride: "You keep using that word. I do not think it means what you think it means." Though it is not inconceivable that a demonstrative could cross the line in various ways, I do think that the label "argumentative" has become a catch-all objection that really means something like, "that is a bit too effective," or "that is likely to be persuasive," or "I'd simply prefer that you not make the point in quite that way."
Don't make that objection. It just worsens the communication experience for both sides, and for jurors as well. But in addition, don't be too quick to accept that objection or to self-censor before opposing counsel or a judge has a chance. Of course, there are reasons to be cautious: No one wants an objection to break the flow of their opening or, worse (but rare), to be reversed based on improper argument in opening. But there are also reasons not to be overcautious. Your opening statement is a precious opportunity to teach the case, and to set a tone. It may not determine the verdict, but it does often help jurors reach a durable first impression. Forswearing the use of good visual tools simply because they're too good amounts to tying one arm behind your back. This post takes a quick look at what the "argumentative" objection means, or ought to mean, and shares a sample argument.