Definition
The right of a party — typically the plaintiff in a civil case or the prosecution in a criminal case — to both begin and end the oral argument phase of a trial. "Opening" refers to the address made to the jury before evidence is presented or before closing arguments begin; "closing" (also called summation or summing up) refers to the final address to the jury after all evidence has been received. The party bearing the burden of proof customarily holds this dual privilege: the right to speak first and the right to have the last word.
As a procedural term, "opening and closing" describes this paired right rather than either address in isolation. The closing address is the more consequential of the two, as it is the final opportunity to frame the evidence before the jury retires to deliberate. In the closing address, the holder of the right is generally expected to confine any rebuttal argument to matters raised by the opposing party's preceding argument.
Common Confusion
"Opening and closing" is sometimes loosely used to refer simply to opening statements and closing arguments as discrete events in trial sequence. The legal term of art, however, refers specifically to the procedural right to occupy both positions — to go first and last. A party can deliver an opening statement or a closing argument without holding "the opening and closing." The privilege is significant precisely because it encompasses the final word, not merely the first.
Do not conflate with "opening statement," which is the preliminary address before evidence is introduced. In common courthouse usage, "opening" and "closing" are often treated as entirely separate events; the compound phrase "opening and closing" signals the procedural entitlement to both.
Why It Matters in Research
Researchers reading 19th- and early 20th-century trial records, treatises, or appellate opinions will encounter disputes over which party was entitled to "the opening and closing" as a live procedural controversy. The allocation of this right was not merely a matter of courtesy — courts treated it as a substantive procedural entitlement tied to the burden of proof, and errors in its assignment could appear as grounds for appeal.
The rule that the party bearing the burden of proof holds the opening and closing was well-established in common law practice, but its application became contested when burdens shifted mid-trial, when multiple parties were aligned on the same side, or when a defendant offered no affirmative evidence. Researchers should not assume that modern rules — which are largely codified in federal and state procedural rules — map cleanly onto historical practice described in older sources.
A related research trap: historical sources use "summing up" where modern sources say "closing argument." The two are functionally identical, but the terminology shift can cause researchers to miss relevant material when searching historical digests and reporters.
The scope of permissible closing argument — particularly the rebuttal limitation (that the closing party should confine reply to what opposing counsel raised) — generated substantial case law. Researchers examining appellate records for error assigned to closing argument conduct should check both the grant of the right and the scope of its exercise.
Historical Dictionary Support
Bouvier's Law Dictionary treats "opening and closing" as an established procedural privilege belonging to the plaintiff, grounded in the plaintiff's position as the party who bears the burden of proof. Bouvier notes that in the closing address the party should confine argument to reply, and signals — with notable restraint — that judicial interference with this mode of procedure "seems doubtful" as a matter of discretion, and should be exercised "only with great caution."
This framing reflects the 19th-century view that the opening-and-closing right had quasi-constitutional procedural weight: courts were reluctant to override it even in the interest of trial management. Bouvier's entry is brief but pointed, and the Michigan authority cited (36 Mich. 254) reflects the real doctrinal friction courts faced in policing this right.
What historical dictionaries do not address: modern procedural codification has substantially regularized the allocation of argument rights, reducing the frequency of appellate disputes on this ground. Bouvier's entry gives no guidance on criminal procedure, where the prosecution's position as burden-holder produces the same basic rule but within a distinct procedural framework.
Jurisdictional Note
The core rule — that the party bearing the burden of proof has the right to open and close argument — is broadly consistent across American jurisdictions, but the mechanics differ. Some states by rule or tradition permit the defense to close last in certain circumstances. Federal courts and most state courts now address argument order through rules of civil and criminal procedure rather than common law doctrine, so researchers should consult applicable procedural rules rather than relying on historical common law formulations.