- many lawyers consider this the most crucial part of the trial
- After opening statements, a case unfolds in bits and pieces and not necessarily in any organized manner
- research shows that many jurors form strong opinions after opening statements and interpret all of the subsequent evidence in light of those initial impressions
- prepare an opening statement that virtually cripples the opposition
- opening statements give an overview of what you expect to show through the witnesses and other evidence that will be introduced during the trial
- Goals of Opening Statements:
1. introduce the case theme to the court and jury
- the opening statement is like a preview or synopsis of what is to follow.
- take this opportunity to put an entire story in a compact package so that the jury will be able to get a bird's-eye view and better comprehend and appreciate the issues and the evidence.
- a case theme allows jurors to later integrate the evidence into the
theme--to make the disjointed evidence make sense
2. attorneys should establish rapport with the court and jury
- get jury to identify with your cause
- come across as sincere, honest, understanding, intelligent, dependable, considerate, warm, kind, friendly, and cheerful
- the opening statement itself has an intro, body, and conclusion
- it is a statement, not an argument!!! -- do not encourage the jury to reach conclusions from abstracted data
- not permitted: Mr. Hare negligently drove at an excessive rate of speed" that is an argument, because the purpose of the trial is for the jury to determine if Mr. Hare was negligent -- the attorney can't draw conclusions!
- but you could say: The speedometer read seventy-three miles per hour, and Mr. Hare was traveling in a fifty-miles-per-hour speed zone." or even "Mr. Hare was racing down the road at 73 miles per hour."
- opening statements only state "facts."
introduction, parties, scene, instrumentalities, date/time/weather, issue, what happened, basis of liability/nonliability or guilt/nonguilt, anticipating and refuting defenses by plaintiff, damages in civil cases, and conclusion
- communicate your case theme, your summary of the facts entitling your side to a favorable verdict, and your enthusiam about trying the case
- theme is presented during the first minute--typically first sentence:
- this is a case about taking chances
- this is a case about a company that refuses to do business the American way
- everything that happened here happened because of greed
- revenge. that's what this case is all about
- this is a case about police brutatality
- this is a case about an innocent man wrongly accused
- this is a case about a wrongfully accused man who instead deserves our honor
- this case is about taking responsibility for wrongful actions
- greed and misfortune leads us here today
- unjust blame of the innocent is why we are here today
- the prosecution's rush to judgment is why were are here, at the detriment of an innocent and loving father--Mr. Jones
- Explain the key issues, preview the important testimony:
"Ladies and gentlemen, this lawsuit was filed because the defendant's car was following too closely behind the car of Mary Jane Fox, the plaintiff. The defendant, Mr. Hare, was not paying attention to the traffic ahead of him. As a result, Mary Jane was hit from behind by Mr. Hare. She suffered a broken and separated leg, and she will have this injury for the rest of her life."
- key persons are introduced--personalize your client (if the prosecution, personalize the people of the state and the need for societal safety)
- introduction of who you represent is humanized so the jury can relate to that entity or person (for the prosecution, it is the people of the state, for the plaintiff and defendant, it is the person or entity you represent)
"May Fox is an elementary school teacher. Before November 22, 1986, she was a very healthy young woman, twenty-eight years of age. She had been teaching at Pelham Elementary School for six years. Mary Jane is married and the mother of one three-year-old son, Jason. She enjoyed jogging, bicycling, and tennis. Never during the course of any of these activities did she have any trouble with her leg. It was only after that fateful day when Mr. Jones sped through a red light three days before Thanksgiving in 1986 that Mary Jane was left parapalegic and unable to enjoy her previous life, and unable to provide her son with a brother or sister."
- this part of the opening statement contains most of the information
- the defense attorney speaks second, therefore, it is beneficial for the defense attorney to tell the jury at the outset that there are at least two sides to every story, and they should not reach a decision in the case until they hear from the defense's side.
- set the scene of the factual incidents
- describe the instruments of the liability or crime (gun, car, sexual language, etc.)
- provide the date, time, and weather if important to your case
- reiterate your theme and link it to the issue of your case
- then tell your best story of what happened (based on what the evid. will show)
- use vivid language when telling the story--make it real for the jury
- state the legal elements to be proven (go to the law library to find this)
- the plaintiff should anticipate and refute defendant's defenses
- question whether you want to bring up your case weaknesses--it might be good to take the sting out of the weakness right away if the weakness is to become an issue--but diminish the importance of the weekness (but never make it appear to be apology or show it as a debilitating aspect of the case).
- do not argue or state personal opinions (save arguments for closing arguments)--this is an "opening statement" not "opening argument"
- as for damages in a civil case, the plaintiff should describe the extensive injuries in detail--use vivid language to have the jury feel your client's pain and suffering--the defendant should express regret that the plaintiff was injured, but indicate that the injury was not his client's fault.
- detail must be provided in the body of your speech
- don't just say your client was driving carefully, but also state the facts supporting such a claim (have support for contentions)
- but don't go overboard with detail==every single detail is poor strategy--look for the pertinent details (the best ones for your case and worst for the other side's case)
- the overall structure of the story should be chronological--beginning, middle, ending (juries follow a chronology best)
- conclude the opening statement by hitting the highlights of your case (let them know what to look for)
- don't give promises that the proof will not show (hurts your credibility and your case)
- if you promise more than you later give, the other side can note those unfulfilled promises to the jury in closing argument and prove weaknesses in your case
- the deliberate inclusion of matters that cannot be established by admissible evidence may constitute a mistrial (i.e. "I expect the defendant has done far worse than what we can prove here because the defendant really is a rotten guy")
- It is usually best to avoid summarizing or refuting the opposition's case, but it is often good to forewarn the jury to watch for certain attempts at counterpersuasion the other side will use against you (it inoculates the jury to be resistent to counterinfluence by first exposing the jury to the arguments involved)
- simply and directly reiterate your top facts and state that the truth will show a verdict for your client.
PRESENTING AND WRITING THE OPENING STATEMENT
- have a narrative style, get the attention of the jury, and have subtle persuasion
- opening statements are basically stories--good storytelling is the essence of effective narrative style
- be clear and specific
- use words wisely and for a purpose--make the story vivid
- transform the ordinary into the exciting
- incorporate imagery--which involves appealing to the senses
- "the injured plaintiff is crushed and impaled in the collision. His arm is torn off, his face is shredded, and his leg is made to look like a broomstick."
- analogies supply a sign of something familiar to experience and knowledge
- "This reminds me of my father reading Robinson Crusoe to me when I was a little boy. Remember when Robinson Crusoe was on the island for such a long time all alone? One morning he went down to the beach and there was a footprint in the sand. Knowing that someone else was on the island, he was so overcome with emotion, he fainted. And why did he faint? Did he see a man? Did he see a foot? No. He saw a footprint that was not his. He saw marks in the sand, the kind made by another human foot. He saw circumstantial evidence that he was not alone. So let's look at the facts of this case--for those tracks that prove the truth."
- "This is the case of a young mother of three small children who,
for the rest of her natural life will be paralyzed from the neck
down because the defendant's tavern sold too much beer to
an underage driver."
- avoid legaleze--talk to the jury in clear language
- simple words should replace complex ones
- simple sentences are easier to follow and remember
- adopt a case theme