Chapter 6: Opening Statement

An opening statement allows the advocate to tell a compelling story, explain the convincing evidence, and describe the desired outcome — and because jurors tend to vote reliably with the early positions formed during opening, a captivating opening has significant impact on a case's outcome.

Chapter 6

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6.1 Introduction

A. Purposes

B. Scope of Presentation

6.2 Preparation for the Opening

A. Opening Based on Final Argument

B. Pretrial/Prehearing Evidentiary Rulings

C. Opening in Jury Trial

D. Anticipating Opponent’s Positions

E. Selecting Visual Aids and Exhibits

F. Meeting Expectations

G. Order of Opening

H. Length of Opening

I. Waiving or Reserving the Opening

J. Prepared Outline/Detailed Script

K. Rehearsal

L. Constraints and Expectations

6.3 Opening Organization

A. Structure

B. Opening Segments

C. Opening Critique

6.4 Opening Content

A. Prefatory Phrases

B. An Effective Story

C. Significant Details

D. Parties/Witnesses

E. The Event

F. Surrounding Circumstances

G. Exhibits and Visual Aids

H. What Happened

I. How It Happened

J. Why It Happened

K. Disputed Issues

L. Claims and Defenses

M. The Law

N. Burden of Proof

O. Damages in a Civil Case

P. Amount of Damages

Q. Request for Relief

6.5 Opening Techniques

A. Offensive/Defensive Approaches

B. Anticipating Defenses

C. Asserting Promises

D. Employing Understatement

E. Avoiding Overstatement

F. Asserting Challenging Positions

G. Describing Case Weaknesses

H. Explaining Absent Evidence

I. Making a Compact

J. Qualifying Remarks

6.6 Presentation and Delivery

A. Positions and Transitions

B. Deportment and Bearing

C. Observing the Fact Finder

D. Notes and Outlines

E. Visual Aids and Exhibits

6.7 Objections and Motions

A. Improper Comments

B. Objections

C. Curative Instructions

D. Opening Statement Motions

E. Uncommon Problems to Avoid

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REFLECTING ON ADVOCACY

The best way to win an argument is to begin by being right. . . .

—Jill Ruckelshaus

Speeches cannot be made long enough for the speakers, nor short enough for the hearers.

—James Perry

Introduction

A. Purposes

An opening statement allows the advocate to tell a compelling story, explain the convincing evidence, and describe the desired outcome. A captivating opening delivers a summary of persuasive facts that successfully supports the claims or defenses. An influential and commanding opening has a significant impact on fact finders and decision makers and their initial understanding and impression of a case.

Judges report that an informative opening helps them understand the facts and the issues in a case. An effective opening provides a helpful overview of the case to arbitrators and administrative judges. Jury surveys reveal that during final deliberations jurors tend to vote reliably with early positions formed during the opening. These results, of course, will be affected by other factors such as cogent evidence, highly credible witnesses, and a powerful closing argument. Nonetheless, the more effectual an opening statement is, the more likely a favorable decision will be forthcoming.

The purposes of an opening statement are to:

• Tell an interesting and absorbing story.
• Introduce the winning theory of the case.
• Explain relevant evidence.
• Describe witnesses and exhibits.
• Portray events using forceful verbal skills and visual aids.
• Summarize the claims, defenses, and positions.
• Highlight the merits of the case.
• Assist the judge, arbitrator, or administrative law judge (ALJ) to ascertain the issues.
• Help jurors understand critical legal issues.
• Motivate the fact finder to want to render a favorable decision.
• Establish an appropriate atmosphere in the court or hearing room.
• Influence the decision maker to initially believe that the advocate’s client is rightfully entitled to win.

Opening statements should always be made in jury trials, and unless there is a good reason not to do so, they should also be made in bench trials, arbitrations, and administrative hearings. In bench trials and arbitrations, if the advocates have been able to previously explain the case to a judge or arbitrator, then it may be unnecessary to present an entire opening statement. It may be sufficient to conduct a succinct opening providing the judge or arbitrator with the critical information and issues that need to be decided. In administrative hearings, this approach also works well unless opening statements are not permitted.

Some judges, arbitrators, and ALJs may suggest or tell the lawyers not to conduct openings because they believe they already know enough or to save time. It may be inappropriate or irritating to deliver an opening to a decision maker who does not want to hear it. The advocate, however, should insist on making an opening statement if the advocate believes it will help explain and win the case. See § 3.11(A).

A carefully crafted and well-presented opening can significantly boost the chances of a favorable outcome, because the story, case theory, evidence, and issues may all be better understood. An ideal opening statement would result in the decision maker jumping up, hugging the advocate, and telling the client that victory is assured. There is no recorded instance of this fantasy ever occurring in the annals of trial practice, but it’s an aspiration.

B. Scope of Presentation

This Chapter explains the presentation of opening statements for all types of trials and hearings including jury trials. Most of the strategies and techniques described apply to bench trials, arbitrations, and administrative cases, with important differences explained in Section 3.11. GenAI and LLMs can assist in planning and presenting opening statements. See § 1.1(C).

1. Facts and Opinions

An opening statement presents, in a story format, facts and opinions that will be introduced as evidence. The facts that can be described include direct and circumstantial evidence and reasonable inferences drawn from this evidence. The opinions that can be described include lay and expert opinions. In a jury trial, an opening statement consists primarily of a presentation based on the evidence.

The goal of the advocate is to tell a story about the evidence. Any admissible evidence, even if in dispute, can be presented. An attorney can refer to facts and opinions from any source, including information to be introduced by opposing counsel. Not all evidence will be referred to during the opening. A skilled advocate selects significant evidence that meets the purposes of an effective opening without including unnecessary details or insignificant information.

2. Theories and Themes

Section 2.5 described the importance of selecting a case theory to support a favorable decision. During the opening, the advocate should use theme words and phrases to introduce claims or defenses.

3. Improper Argument

Opening statement is not opening argument, and the general rule is that it is improper to present arguments during an opening. An attorney cannot provide reasoned explanations, propose systemic conclusions, comment on the evidence, or otherwise advance arguments. The advocate should, however, present the most persuasive opening possible, and a skilled advocate may present an opening statement that touches the line of argument but does not cross over that line.

Jurors are fact finders, and the content of an opening statement in a jury trial focuses on the facts. There is often a fine line between what is a factual statement and what is an argumentative assertion. And there can be a fine line between what is a relevant fact supported by the evidence and what is an improper conclusion advanced by the lawyer. There are differences of opinion regarding where the lines are to be drawn. Advocates need to comply with reasonable opening statement limits and restrictions, and not be overly cautious in straddling the line.

Professional decision makers determine the facts and decide the legal issues. Attorneys presenting openings before judges, arbitrators, and ALJs have greater latitude regarding the scope and content of the opening. Opening statements presented before these decision makers may include both factual and legal statements and can identify controlling issues and how they should be decided.

4. Issues

Before jurors, an effective opening presents the issues within the context of what factually happened. The advocate recreates the narrative story that contains the issues the jurors need to resolve. The opening can highlight the important facts supporting the key decisions the jurors need to make. For example, in a criminal case, references may be made by defense to the jury finding the defendant not guilty based on the lack of evidence proving guilt beyond a reasonable doubt.

Before professional decision makers, advocates can specifically identify and summarize the decisive factual and legal issues. These issue summaries augment the story and provide helpful guidance regarding what needs to be decided. For example, in a civil case, counsel may apply supportive facts to the legal elements and propose the final outcome.

5. The Law

In a jury trial, the judge has the responsibility of explaining the law to the jurors and may do so through preliminary jury instructions. The trial attorney may make accurate short references about legal issues and elements of a claim or defense during the opening. For example, counsel may briefly mention how the law applies to the facts or how the facts support the law. If in doubt, the attorney can inquire of the judge about the appropriate and permissible scope.

In a bench trial, arbitration, and administrative hearing, the advocate ordinarily can discuss the law and legal matters. As stated previously, counsel can include in an opening statement explanations about the facts and the law to these decision makers who will decide both the factual and legal issues.

6. Visual Aids and Exhibits

Visual aids and real and demonstrative exhibits are often used in openings to enhance the story. The information contained and portrayed in these sources can help the fact finder better understand and remember more about the case. Presentation software, computer generated lists, printed outlines, or written charts provide a helpful way to present an opening and to have the fact finder follow along and pay attention.

The use of real and demonstrative exhibits that will be introduced during the trial or hearing also aid in understanding the evidence. Many cases involve electronically stored information, social network communications, and digital evidence that can be effectively presented as exhibits. During the opening, critical evidence can be displayed using computer aided exhibits. Jurors, judges, and arbitrators may expect the advocates to use visual displays and printed diagrams in addition to the spoken word. Because of these expectations, it’s effective to employ available case exhibits or create visual aids for the opening, which may also be used in summation.

7. A Content Test

A helpful “test” to determine whether an attorney can include information during opening to a jury is to determine whether a witness, a document, or some other form of evidence will provide such material. If the answer is yes, the information may be provided during the opening; if no, then that material is probably inappropriate and objectionable.

Adherence to this conservative test minimizes objections to an opening statement. Strict adherence, however, may deprive an opening of the persuasive explanation needed to be most effective, including an appropriate description of the case theory and issues. Most judges and opposing lawyers allow more latitude in an opening statement than described in this narrow test.

Preparation for the Opening

This section discusses planning considerations including: the efficient preparation of an opening statement, the selection of the evidence to be explained, the theories and issues to be described, the law to be applied, and the most effective way to present this information.

A. Opening Based on Final Argument

Begin with the end: The final argument constitutes the foundation for the opening statement. Summation must be planned before the trial starts. See §§ 2.4(A) and 11.3(A). If a fact, opinion, theory, issue, or position is not going to be a part of the closing statement, then it should not be part of the opening statement. The opening must be consistent with and based on what will be included in the final argument.

B. Pretrial/Prehearing Evidentiary Rulings

The initial planning of an opening involves a review of the admissible evidence. The various sources of evidence provide the facts that form the basis of the opening story. The witnesses, documents, experts, exhibits, stipulations, and other resources need to be identified and ascertained during this preparation.

In determining which evidence to present during the opening statement, the attorney may also consider whether an in limine ruling is necessary or helpful. An opening may not refer to evidence that is inadmissible. Pretrial and prehearing evidentiary rulings permit counsel to plan an opening statement knowing what evidence will be admitted.

Section 4.5(A) described the procedure of bringing a motion in limine to obtain a pretrial or prehearing evidentiary ruling. An attorney may want to obtain an advance ruling to avoid an objection by the opposing lawyer to questionable evidence. An opposing lawyer may want to obtain a pretrial ruling to prevent jurors from hearing information that will not be admissible evidence during the trial.

Not all evidentiary problems will be resolved in a pretrial or prehearing motion. A ruling on admissibility may be deferred until that point in the case when the evidence is actually introduced. An advance ruling need not be sought for tactical reasons: an attorney may prefer to presume the evidence will be admissible or may not want to suggest that some evidence might be objectionable. The advocate may need to plan the opening without knowing if some evidence will be excluded or without the benefit of an advance ruling.

C. Opening in Jury Trial

An opening statement should be based in part on what has happened during the judge’s initial explanations and jury selection. Remarks made during jury selection and during preliminary instructions by the judge to the jury may affect what should be said and how it should be presented during the opening. In jurisdictions where jury selection questioning has been extensive, it may not be as necessary for the attorney to spend time establishing a rapport with the jurors. But, where jury selection is limited, the attorney may need to provide the jurors with more information that seeks to establish a favorable impression of the case during the opening. In a similar fashion, where the judge provides an objective explanation of the issues in a case, it may not be necessary for the attorneys to detail the claims and defenses. But, where the judge gives few preliminary instructions or descriptions, a detailed summary of the issues, claims, and defenses may be necessary.

D. Anticipating Opponent’s Positions

When preparing an opening statement, a lawyer needs to review the case from the perspective of the opposition. The advocate must anticipate and attempt to diffuse the other side’s opening statement, theories, evidence, and case. The more accurately an attorney anticipates the other side’s positions, the more effectively the attorney can present an opening that rebuts what the other side has said or will say. Again, GenAI and LLMs can assist identifying and ascertaining positions opposing counsel may advance. See § 1.1(C).

GenAI and LLMs can assist lawyers by simulating opposing counsel’s perspective. These models can analyze the available case materials, as well as caselaw and statutory law, generating potential arguments, theories, and evidence that the opposing side might present. LLMs can provide attorneys insights into the strengths and weaknesses of the opposition’s case, allowing for a more strategic and anticipatory approach to crafting their opening statements.

E. Selecting Visual Aids and Exhibits

An advocate must decide the best use that may be made of visual aids and exhibits during the opening statement. Consideration should be given to the persuasive impact these devices may have on the decision maker and how they will make the opening statement more understandable and interesting. The fact finder is more likely to recall important parts of the opening when those parts are presented using visual aids and exhibits. The opening can focus on critical pieces of real evidence by displaying their contents and can highlight important demonstrative evidence. Openings in cases that involve electronic and digital information can use technology to enhance this evidence. The use of these aids and exhibits is described in Section 6.4(G) and Chapter 8.

F. Meeting Expectations

Planning and preparation decisions need to be made in the context of what the fact finders/decision makers expect. Professional decision makers who routinely hear and observe openings have both general and specific expectations. They know the procedural rules and anticipate the lawyers will follow those mandates and guidelines. They each will also have their own individual preferences for what occurs in an opening, which the attorneys can discuss with them before the opening.

Jurors and professional decision makers will be influenced by what they believe should happen and what they know about similar presentations. Years ago, people were used to hearing long speeches, reading lengthy news articles, and viewing detailed media programs. Today many are used to seeing short, concise presentations via the media and online or live reports. The proliferation of TED talks, PowerPoint presentations, controversial chat shows, specialized blogs, and website displays have created expectations about how openings could be presented.

Advocates need to choose the most effective means and the most persuasive content in preparing an opening. They also need to reflect on the expectations of their particular audience. It makes little sense to craft an opening that appeals to the advocate or a client but not to the fact finder/decision maker.

G. Order of Opening

In bench trials, arbitrations, and administrative hearings, opening statements typically occur at the beginning of the case. In jury trials, opening statements usually occur immediately after jury selection. In some administrative cases, opening statements are not common or permitted.

The general rule is that the party with the burden of proof gives the first opening statement. A plaintiff/claimant/prosecutor has the burden of proof in a case and makes the first opening. The defendant/respondent then has an opportunity to present an opening immediately or may delay the opening until after the plaintiff/claimant/prosecutor has presented evidence and rested, as explained in Section 6.2(I). In cases with multiple parties, the order of the opening statements is determined based on one or more of the following factors: which party has the greater burden of proof, the chronology of the events, and which party has the more substantial claim or defense.

H. Length of Opening

The opening statement should be long enough to explain what needs to be stated and short enough to maintain the attention of the fact finders/‌decision makers. The length of the trial or hearing commonly reflects an appropriate length. The longer the case, the more time is needed to present an opening.

There is no optimum length for an opening statement because each opening depends upon the evidence and circumstances of the case and the approach of the attorney. Some openings may only last five minutes, and others may extend for an hour or more. Many opening statements do not exceed fifteen to thirty minutes. Openings can be made reasonable in length through practice and rehearsal, by crafting a concise and compelling story, and with the use of visual aids outlining a narrative and the issues.

Some openings have specific, set time restrictions. Limited or enlarged time periods can be sought. An attorney who anticipates that the opposing lawyer may exceed a reasonable time may ask for an appropriate reduction.

I. Waiving or Reserving the Opening

In a jury trial, an opening statement should never be waived because of the advantages an effective opening provides. In a case before a professional decision maker, an opening could be waived if an advocate has had an opportunity to fully explain the case prior to the trial or hearing. Because of its impactful role in a case, an opening statement should ordinarily be presented, unless proscribed. See § 6.1(A).

Federal and state courts permit the defendant to present an opening statement immediately after the plaintiff/prosecutor or to reserve the opening statement until the plaintiff/prosecutor rests and the defense case begins. Local rules or practice may prohibit or restrict the defense option of delaying an opening statement. In the vast majority of civil cases and in most criminal cases, the defendant should give the opening statement immediately following the opening by the plaintiff/prosecutor. This approach provides the jury with an explanation of both sides of the case, places the plaintiff/prosecutor’s case in perspective, and counters an effective opening statement. When the defense opening is delayed, undue weight may be attached to the initial opening statement and not to available defenses.

In civil cases, because of discovery, pretrial conferences, and settlement efforts, the defense knows what issues the plaintiff will attempt to prove and what evidence will be offered. In these cases, the advantages in immediately giving the opening far outweigh any advantage gained from delaying it. The defendant’s own account can be explained at the outset, and those facts and views can be considered when evidence is introduced.

In criminal cases, there may be an advantage to the defendant in reserving an opening statement, especially if discovery has been constrained and some evidence may or may not be available or introduced. Postponing the opening statement in such situations prevents the prosecution from modifying the presentation of its case to reduce the impact of the defense described in the defense opening. In a case where alternative defenses exist and a defense attorney is unsure what defense may be best, it may be more effective to make that decision after the prosecution has presented its evidence.

In some cases where the defense attorney is not certain whether the defendant will testify, delaying the opening may also be a useful tactic. Not giving a prompt opening, however, may create an impression that the prosecution’s case is stronger than it really is. If an opening is deferred, defense counsel should announce that an opening will be forthcoming.

J. Prepared Outline/Detailed Script

The material for an opening statement should be organized into an outline format, including an introduction, body with segments, and conclusion. The use of an outline helps organize the facts and issues of the case into a readily accessible structure. As the attorney prepares other facets of the case, the outline may be modified and should remain flexible. Form 6.1 is an example of an outline of elements to be considered.

Some lawyers find it helpful to prepare a complete opening statement. This draft may then be reviewed and improved. The drawback of using a script during an opening statement is the temptation to read it. A better approach is to craft a key word outline and practice the presentation until the advocate has learned rather than memorized a script. When notes are used, they should be utilized in a forthright fashion.

Counsel can create visual aids that contain an outline of all or part of the opening and use it as a guide while speaking. Outlines and notes can be prepared on a laptop and revealed on the monitor during the opening statement. Or, the outline can be written on a paper pad, or can be printed on a poster or display board and shown as the contents are discussed. How the notes should be used or displayed depends upon how best they augment the content of the opening.

GenAI and LLMs can significantly streamline the process of organizing and drafting opening statements. By entering key case facts and themes, an LLM can generate a structured outline that includes an introduction, segmented body, and conclusion. This generated outline can serve as a sturdy foundation, helping ensure that all critical aspects of the case are covered comprehensively. Moreover, LLMs can assist in creating outline variations to adapt to different strategic needs as the case evolves.

An LLM-generated initial draft, based on the case details, can also save significant time and effort. Counsel can review and refine the draft to match their style and strategy. This approach can help avoid the pitfalls of relying too heavily on a script, since the attorney can use the LLM-aided outline to prepare and practice, helping ensure a more natural and confident delivery.

K. Rehearsal

After the attorney has prepared the outline or script, practice is necessary to be adequately prepared for the presentation. Opening statements should not be read aloud from a set script, nor should they be rigidly memorized. The attorney should not necessarily try to recall exact words, but rather express the ideas that have been rehearsed, unless precise words are key to the case.

Counsel may want to think through the opening statement silently and then practice verbally, concentrating on content. Practice should include rehearsing the use of visual aids and exhibits. As the content of the opening is mastered, the advocate can work on stylistic improvements to enhance the delivery. After this preparation the lawyer should continue rehearsing the opening statement until it is as good as it can be. Counsel may use an audience of colleagues or family, or a video for critique.

The attorney should rehearse until the story can be told in a persuasive, compelling manner. The key to an effective presentation of an opening is that the lawyer knows the ideas and important phrases that need to be conveyed, is comfortable with and confident about this account, and can make a sincere, believable, and understandable presentation. Novice advocates will need to practice until they are well prepared. Skilled advocates can rely on prior experiences in presenting an opening.

GenAI, including LLMs, can also help attorneys during the practice phase of preparing an opening statement. LLM-backed tools can analyze rehearsal recordings to provide feedback on intonation, pacing, and the use of fillers such as “um” and “uh.” By identifying these elements, LLMs help attorneys refine their delivery, making it smoother and more engaging. Additionally, AI can offer suggestions for improving vocal variety (e.g., intonation) and emphasis, ensuring that key points are communicated effectively.

Moreover, LLMs can simulate an audience for practice sessions. By interacting with the AI system, attorneys can receive real-time feedback, which they can use to adjust their presentation. Interactive practice can help lawyers master the content and improve their overall delivery style. AI tools can also transcribe rehearsals, highlighting areas where the advocate may overuse filler words or deviate from the intended message.

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L. Constraints and Expectations

The attorney should determine before the trial or hearing whether there are any requirements or limitations regarding the opening statement or whether applicable rules set limits on the content, length, or presentation of the opening. This determination avoids having the opening interrupted and reduces the chances of opposing counsel making objections. Judges, arbitrators, and ALJs may have some constraints or expectations that may need to be complied with, and it’s wise for counsel to discuss these issues before the opening is presented.

Opening Organization

A. Structure

Opening statements must be presented in an organized fashion, allowing the entire case to be framed in the opening and helping the fact finder easily understand the facts and issues. The following are examples of various structures that can be used effectively:

1. Chronological

A chronological description of events is relatively easy to remember, makes sense, and is simple to understand. The advocate describes the events in the order in which they occurred. For example, in an employment arbitration, the opening can begin when the plaintiff was hired and end with events occurring on the date the plaintiff was fired.

2. Flashback

The beginning of the opening can relate the end of the story, and the remaining account can be told by flashing back to earlier events. For example, in a murder trial, the murder can be described first, followed by the events leading up to the murder, including the planning of the crime.

3. Parallel Actions

The actions of the plaintiff and the defendant or victim and criminal defendant can be told separately with the conclusion being the final event at which they came together. For example, in an automobile accident case, the routes of the plaintiff and defendant can be separately described with the conclusion being the collision.

4. Claims, Defenses, Topics

The opening can be structured around the claims, defenses or related topics that will be proved during the trial. For example, in a breach of contract arbitration, the opening can describe the legal elements: creation of the contract, its terms, its breach, and the resulting damages.

5. Order of Evidence

The opening can be structured to reflect the order in which the evidence is presented, the witnesses testify, and the documents are introduced. For example, in a real estate administrative hearing involving lay and expert witnesses and numerous documents, the opening statement can follow the order in which the witnesses will testify and documents will be introduced. Available exhibits consisting of real and demonstrative evidence may also be a guide.

6. Liability and Damages

In civil cases, the opening can first discuss liability and then damages. For example, in a patent case, the narrative story can describe how the infringement occurred and then what damages were incurred.

7. Mixture of Substructures

A number of these approaches can be used for parts of the opening, as substructures. For example, a civil case could begin with the flashback technique, use chronology to present the liability facts, and explain the damages in the order in which the witnesses will describe the damages.

B. Opening Segments

An opening statement includes the introduction, the body, and the conclusion.

1. Introduction

An opening should begin with an introduction that draws fact finders into the case when they are alert and interested in learning about what happened and why. The principles of advocacy and persuasion explained in Sections 1.6 and 1.7 apply with special force to the start of the opening statement.

Commencing the statement in an interesting and dramatic way may be the most effective way to begin an opening. Initial remarks in an opening need to reflect what has occurred previously. In a case before a professional decision maker who is very familiar with the case, the opening may be limited to outlining the major issues to be decided. In a jury trial, the beginning depends in part upon what introductory remarks and instructions the judge may have given and what information the jury has learned about the case during the jury selection process. An illustration of a judge’s explanation follows.

Example (Judge):

Members of the Jury, at this beginning stage of the Jorge Mario Bergoglio vs. Sons of Anarchy trial the attorneys will now make what is called an opening statement. Each of them will tell you the evidence that will be introduced in this case. After these opening remarks, each of the parties will present their case. The plaintiff will proceed first, and present witnesses and introduce documents that support his case. Defense counsel will then have an opportunity to cross-examine the plaintiff’s witnesses. After the plaintiff introduces all his evidence, the defendant will then present witnesses and exhibits in support of their case, and the plaintiff will have a chance to question the defense witnesses. After both parties have completed presenting their evidence, the attorneys will have an opportunity to summarize and explain the case to you in final argument. I will then instruct you on the law by explaining the law that applies to this case. You will go to the jury room, deliberate, and reach a verdict, concluding this trial.

Counsel for plaintiff will now make an opening statement.

Ordinarily, a judge provides a similar, or more concise or lengthy, explanation to the jury describing how the trial will be conducted. If the attorney is uncertain what instructions may be given, the attorney can request that the judge provide particular instructions and preliminary remarks concerning the purpose of the opening, the scope of evidence, and the trial procedures. If a judge does not explain to the jury the trial process, counsel may provide that information at some point during the opening statement.

a. Explanation of Purposes

An opening statement may begin with an explanation of who the lawyers are, whom they represent, and the purposes of an opening. The following examples of introductory comments demonstrate how some lawyers begin their opening. These remarks are not the most persuasive way to begin an opening, although they provide a comfortable way to begin and may help reduce initial anxiety.

Example (Purpose):

Members of the Jury, this opening statement allows me to explain to you the evidence that you will hear and see in this case. The evidence will be presented on behalf of Will Shortz in bits and pieces and not in the order in which the events occurred. This opening will provide you with an overview of the case and help you understand what happened, when it happened, and why it happened.

Example (Explanation):

My name is Atticus Finch. I represent Tom Robinson, who is sitting here. I now have the privilege of speaking to you about the evidence that will be introduced during this trial. This case will be presented to you like a jigsaw puzzle. Each witness who testifies and each document that is admitted will be a piece of that puzzle. At the end you will be able to put together a clear picture of what happened and why. In the beginning, this opening allows me an opportunity to describe to you each of the pieces so that you will better understand the complete picture.

Example (Personal Injury):

Daisy Werthan, the plaintiff, has suffered severe and permanent injuries caused by the negligent conduct of the defendant, Hoke Colburn. As you know, I am Vincent Gambini, the attorney representing Ms. Werthan. As the judge explained, this opening statement permits me to describe what happened to cause that terrible accident and those agonizing disabling injuries that have cost Ms. Werthan a long and well deserved retirement. I will tell you the story of the tragic events while presenting a summary of the evidence.

Example (Employment Case):

You have already met the defendant, Begum Hussain. She is here today to tell you why she doesn’t owe the plaintiff any salary or benefits or anything. I am here to present the facts through witnesses and documents which show that she did not breach the employment agreement with the plaintiff. You are here to listen to the evidence and render a fair and just verdict on her behalf.

The advantage of these or similar preliminary remarks is that the jurors may better understand the purpose of the opening statement and the identity of the attorneys and parties. The disadvantage of such remarks is that they may not be the most persuasive way to begin the presentation of the case. The jurors can initially be told the theory of the case, and later about identities of participants and opening statement procedures.

b. Explanation of Theme

An opening statement may begin with an explanation of the case theory described in a compelling and dramatic way to develop interest and capture the attention of the fact finder. The advantage of this approach is that the fact finder gains a favorable impression of the case and is more likely to recall the theme words used to describe the important facts and issues. The disadvantage is that issues may be overstated, or the opening made too melodramatic. This approach, if done well, can be quite effective in any type of case before any decision maker.

Example (Personal Injury):

This case is about the life and death of a man, a husband, a father, and a member of our community. His name is Walter White. He was killed when the all-terrain vehicle he was carefully driving rolled over unexpectedly, throwing him dangerously out of the defective four wheeler and over the cliff where he fell to his tragic death. He was thirty-nine years old with a loving family, wife, and children. He was a much admired high school chemistry teacher leading a very productive life.

Example (Product Liability Plaintiff):

You are going to hear a case about corporate deception and dishonesty by one of the largest pharmaceutical corporations in the world. This case is about the lethal marketing of the Precon Shield, a dangerously unsafe product. This case is about the selling of this hazardous product to millions of women, without caring about the serious and excruciating injuries these innocent victims would suffer. This case is about voracious greed.

Example (Criminal Prosecution):

Members of the Jury, on a clear summer evening on June 19, Helen Frankenthaler got off the commuter train in Elmhurst. She was coming from work at the Wrigley Center where she works as an art editor. The train pulled away from the station. She began walking to her car parked a block from the station. As she walked into the entrance of the parking ramp, she heard a noise. She stopped, turned slowly to her right, and confronted that man (looking at the defendant). On behalf of the people of this State, I am here today to tell you the facts of what happened when that man (referring to the defendant) viciously attacked her. After hearing those facts, it will be clear beyond a reasonable doubt that that man (turning to the defendant) brutally assaulted Ms. Frankenthaler, stole her portfolio, her money, and her sense of security and peace of mind.

Example (Criminal Defense):

This is a tragic case of mistaken identity. Mr. Abdulyadej did not commit any crime on the evening of October 15. He is completely innocent of what the prosecutor has claimed he did. Under our system of justice, the prosecution has the burden to prove to you beyond a reasonable doubt that this family man is guilty. Under our system of fairness, he is presumed to be innocent. Indeed, he is innocent as he sits here in this courtroom. The facts that you will hear in this case will convince you that Mr. Abdulyadej was not anywhere near the scene of the crime. The case for the prosecution consists of one tired and weary eyewitness who attempts to somehow identify him. That incomplete and flimsy identification, members of the jury, was made under feeble circumstances that make it totally unreliable and erroneous.

2. The Body

The opening provides counsel with the opportunity to be a storyteller. This narrative tale chronicles the case and describes and explains the facts. It, like other facets of advocacy, should be clear, complete, and compelling.

The substance of the opening depends upon what the fact finder knows. A professional decision maker may know some major aspects of the case. Jurors may only know a bit about the case depending upon the extent of jury selection and preliminary statements made by the judge. The advocate should design a presentation to describe and explain the relevant facts and issues of the case.

An opening statement may answer six questions: Who is involved, when and where did it happen, what happened, and how and why did it happen? It’s obvious that the facts of what occurred need to be presented. It is also critically important to include facts that explain the why of what transpired. Motive, purpose, passions, motivation, reason, and reactions are also vital elements that can be included.

The most effective way this information can be presented is usually by the attorney telling an interesting and understandable factual story. This description of events should parallel the substance of the evidence, and the summary that will be given in the closing argument. The lawyer, particularly a defense counsel, may need to explain what the evidence will not show as well as what it will show. Section 6.4 provides examples of the components of the body of an opening.

3. Conclusion

An opening statement should have a strong conclusion. This may be achieved with a concise summary of the vital facts, with a forceful statement justifying a decision, or with a dramatic summary of the major theme of the case. A strong ending will have an impact because the fact finders often remember what they hear last. A strong presentation can be hindered by an apologetic or weak conclusion. The final words should be carefully selected to deliver a convincing conclusion.

Example (Civil Plaintiff):

Members of the jury, at the end of this trial, after you have heard all the evidence, we’ll ask that you find the defendant responsible for the damages suffered by Anita Lizana, and that you find she must be compensated for her medical expenses, for the wages and income she has lost, for her inability to play professional tennis, and for the pain and suffering she has endured and continues to painfully endure to this day as a result of the defendant’s reckless negligence. We’re confident you will hold the defendant accountable for his irresponsible carelessness and gross indifference.

Example (Civil Defendant):

Those facts will clearly establish the defendant was not responsible for what happened, and is not liable to the plaintiff in any way. The testimony and the exhibits will show that the plaintiff did not and cannot prove her unconvincing and untrue claims. At the end of this case, you will conclude that the defendant Phil Wenneck did no wrong, acted reasonably, and bears no legal duty or debt to the plaintiff.

Example (Criminal Prosecution):

At the conclusion of this trial, I’ll have an opportunity to talk with you again and discuss this shocking and compelling evidence, and how and why the defendants greedily and savagely broke the law. I’ll ask you at that time to return a righteous verdict and find the defendants Bonnie and Clyde guilty of robbery.

Example (Criminal Defendant):

At the end of this case, I’ll discuss what you have heard and seen during this trial. By that time, you will have more than reasonable doubt that Mr. Baggins was not involved in the incident. By that time, you will be convinced that Bilbo Baggins did not steal the ring and is not guilty. By that time, you’ll know he’s innocent, and you will want to return a verdict on his behalf.

C. Opening Critique

Questions that may assist in determining whether an opening statement has been properly constructed include the following:

• Does the opening statement tell what happened and why?
• Does the opening explain the relief, award, or verdict?
• Does the opening statement present the theory of the case?
• Are visual aids and exhibits available to be used?
• Does the opening statement have an effective structure?
• Is the opening consistent with what will be proved in the case and with what will be argued in summation?
• Does the opening statement make the decision maker want to find for the client?

Opening Content

The content of an opening depends upon the facts and circumstances of the case and the strategic and tactical decisions of the advocate. The following factors may be considered when preparing the opening. Again, GenAI and LLMs can assist in planning an opening and providing supplementary content. See § 1.1[C].

A. Prefatory Phrases

Advocates may use a variety of prefatory phrases during opening statements. Some common prefaces include “I will prove” and “the evidence will show.” Whether prefatory phrases should be used is a matter of debate among advocates.

Many lawyers suggest that these phrases be used sparingly, or not at all, and that the attorney should simply tell a story without any qualifying prefaces. Some lawyers believe the attorney must use expressions like “I will prove to you” or “We will present evidence” to establish the advocate’s position in a case and to have as powerful an influence as possible on the fact finders. Other advocates believe that more objective expressions such as “the evidence will show” or “you will learn” are more appropriate.

Counsel may be expected or required to preface their remarks with these types of phrases. The use of these expressions during an opening may prevent a presentation from sounding like an argument. A neutral qualifying phrase may be an effective way of preventing an objection. If this tactic is overused and it becomes apparent it’s being used to argue or to introduce inappropriate information, an objection will be sustained.

Example (Criminal Case):

We will prove the defendant, Lucas McCain, did not intend to shoot the rifle. I’ll present evidence that will establish this incident was all an unfortunate accident, and that he is not at fault.

Example (Civil Case):

You’ll learn from the evidence that the defendant, Marquess Malguste, was grossly negligent. Because he was so negligent he is legally responsible for what happened. The facts and law require that he be held accountable, and that he must compensate the plaintiff, Marchioness Guste, for what he did to her.

B. An Effective Story

The opening statement story should be told with dynamic words, in an interesting and as dramatic a fashion as is appropriate. Statements and approaches that make a story believable and persuasive appear in great works of literature, art, and theatre, and they are the same factors that can make an opening very effective. An LLM can enhance this process by providing compelling narratives and optimizing word choices for maximum impact. This AI implement can suggest and generate dynamic language that makes the story more vivid and engaging. LLMs can also suggest powerful verbs, striking adjectives, and effective sentence structures to better captivate the audience’s attention. See § 1.5.

Example (Commercial Case):

This heartbreak of a case is about a lost business opportunity, a lost invention, a lost dream—unfairly taken from a creative individual by a large irresponsible corporation. On February 14, Dr. Joan Clarke, while working hard and long hours, by herself for herself, in her home workshop, invented a new and innovative enigma computer device. Sometime later she visited the offices of the corporate defendant. She offered the company an opportunity to buy this invention. The lawyers for that conglomerate drafted a 12-page document. The executives of that corporation told the plaintiff that if she wanted to market her invention she would need to sign this contract. She willingly signed it, and they signed it. While she lived up to her end of that legal agreement, the corporate managers failed to do so. They breached the terms of that binding document. They didn’t do what they told her they would do. They haven’t paid her what they said they would pay her. We are here today to hold them to their promises, to their word, to their lawfully enforceable contract.

Example (Criminal Case):

On the early evening of July 20, Mary Stands With A Fist was just finishing the last half mile of her three-mile run down Badlands Highway here in Fort Sedgwick. Mr. Dunbar had just finished drinking his fifth martini at the No Name bar. As Mary was running about four miles an hour on the marked jogging path along Badlands wearing her bright neon orange outfit, Defendant Dunbar was weaving his car from side to side and speeding along, traveling in the same direction on southbound Badlands Highway. Mary never saw the car that ran her down. Mary never saw the driver that killed her. She is gone. Her life is over. But we see him, he is with us. This trial is to hold him responsible for the reckless killing and negligent homicide of Mary Stands With A Fist—a tragedy which he caused and for which he is clearly guilty.

C. Significant Details

The facts presented during an opening statement should be as detailed as necessary to provide a clear and complete story. The advantage of providing a detailed account is that the narrative is usually perceived by the decision maker as more credible and more persuasive. Details that provide necessary information for a full understanding of events and that explain sources of corroboration and credibility bolster the essential aspects of a case. The disadvantage of describing specific facts is that the subsequent introduction of that evidence during the trial or hearing may not be as definitive as the opening suggested. Additionally, too much detail can be tedious and confusing.

Example (Personal Injury):

The defendant administrators violated school district safety rules regarding fitness activities and the well-being of the kids. These school rules require gym mats to contain four inches of thick foam. The defendants were using pads with only two inches of thin foam. The safety rules also require one supervisor for every ten kids using the gym mats. The defendants at the Rydell school had only one supervisor for twenty kids. The mats had much less foam and there were far fewer supervisors than needed. The administrators knew it, but weren’t concerned and didn’t care, and they must be held responsible for their carelessness and negligence.

Example (Industrial Data):

We will hear a lot of technical data about this Fornistan machine. We will see instruction manuals, diagrams, graphic designs, and other evidence. And although these engineering details may appear very complicated and technical, the basic issue in this case is simple and straightforward. We will be focusing on only one part of the machine that was properly designed and safely constructed, and did not in any way cause the accident.

D. Parties/Witnesses

Information about the parties and witnesses can be explained during opening. The advocate can explain who will testify and what each person will say. Witnesses should be described in a way that will make their account understandable and their testimony credible.

The fact finder needs to understand or be reminded that a case involves people and not merely abstract legal problems. The more a party and key witnesses are personalized and described as individuals who will testify to what happened, the more likely they will be perceived as believable. Statements should be made which help the fact finder identify, relate to, and empathize with the witnesses.

Whether every witness needs to be identified during opening statement depends on the facts of the case and the importance of the witness. The more critical the individual is to the case, the more essential it will be to identify that person. If the testimony of the witness should be highlighted, describing the witness in the opening will help do so. If a distinguished expert will testify, recognizing that expert will be notable.

Fact finders may have a difficult time identifying with witnesses who are not adequately described during an opening. They have no useful way of forming a picture in their mind of the witness. A party or witness who is present can be acknowledged. Key witnesses may be present during the opening so the attorney can introduce them. The names and identities of witnesses can be displayed in a list or through exhibit photos.

Fact finders can find it difficult to remember details and the names of witnesses. The struggle to remember and identify witnesses may distract them from recalling more important details of the opening. Highlighting the source of the evidence by generally describing the witness (e.g., an eyewitness to the explosion, a bank vice president, a prison guard) may be sufficient. This type of identification helps the fact finders understand what happened without burdening them with too many names to remember.

Statements about the background of a witness may also be included. This information can be effective if the fact finders have things in common with the background of the witness or if the description portrays a responsible, believable individual. The backgrounds of marginal or problem witnesses need not be detailed in the opening.

Describing a witness during the opening commits the attorney to calling that person to testify. Only witnesses who are sure to be called ought to be described. If there is uncertainty about whether a witness will testify, no specific reference ought to be made to that individual. A defense attorney may decide not to call a witness to testify based on the way the plaintiff/claimant/prosecutor presented a case and should not specifically refer to these optional witnesses in the opening.

Whatever is said about a witness and testimony should be proven during the trial or hearing. An advocate should not offer incomplete information or exaggerate the background or testimony of the witness. Exaggeration may create unfulfilled expectations with the fact finder. Misstatements provide an opportunity for opposing counsel to correct the inaccurate or incomplete description during opening or comment during final argument on the failure to prove such statements.

Example (Corporate Personnel):

Marvel Comics is a group of people, who are ordinary folks working at their trade providing consumers with fun adventures. The heart and soul of this company are the workers, managers, and shareholders. Anya Sofia Corazon who sits here, represents all those individuals. She will stay throughout the entire trial, and she’ll also take the stand and testify to what really happened.

Example (Key Witnesses):

Please listen to the testimony of the witnesses carefully. Consider what they say and assess their believability. Think about which one has a reason to be less than truthful. See which one was in the best position to observe what happened. We know what Jack Bauer will say in this case because we had an opportunity to interview and interrogate him and ask him questions under oath before trial. He’ll tell you the same things he told us.

Example (Experts):

Rachel Carson will testify that in her opinion this product is a grave danger to the environment. We’ll hear all about her environmental expertise, her extensive professional experiences, the many professional articles she has written, the prestigious teaching positions she holds, and her excellent reputation in her field of expertise. We’ll also hear her expert opinion, the facts that support that opinion, and the reasons why this liquescent extract product is so very harmful, toxic, and hazardous.

E. The Event

The description of important incidents, occurrences, and events is a typical part of an opening statement. The portrayal should be accurate and complete and should enable the fact finders to compose a clear picture in their minds. Verbal descriptions of scenes can become complicated if too much detail is given, or if complex explanations are attempted. Only those details that portray the scene accurately should be provided. It can be difficult for fact finders to follow directions or visualize matters in the abstract. References to compass directions (north, south), degrees (a 90 degree turn), angles (a sharp right turn), and similar references can be difficult to visualize. Visual aids and exhibits may and should be used to describe scenes to ensure a better understanding. See Chapter 8.

Example (Use of Graphic Diagram):

The streetcar was headed east, in this direction, left to right, on this enlarged city map, along Elysian Fields. The tram stopped at this intersection here at the southwest corner of Desire Street. Elysian Fields runs east and west, and Desire runs north and south along this line. The plaintiff, Stella Kowalski, got off the streetcar at this intersection on this corner. She waited for the lights to change and waited for the walk sign to be lit up and then began walking in the crosswalk across Elysian Fields to the northwest side of the intersection to this spot marked SK.

F. Surrounding Circumstances

Information about the circumstances surrounding the incident or event may be important and may need to be explained during the opening. Explanations of the time, date, weather, location, and other information should be provided as needed. The more important the circumstance is to the story, the more detail should be provided. If the time of the day is critical to the case, the precise time should be mentioned. If the exact weather conditions are important, atmospheric details should be provided.

The extent to which details need to be described depends upon how precise witnesses will be and how necessary it is for the fact finder to visualize an accurate picture of real evidence. For example, it may be sufficient to describe a boat simply as a “boat” if a further description is unnecessary. If it’s important that the fact finder accurately visualize the shape of the boat, then a photo or a model of the boat can be introduced.

Example (Criminal Case):

As Georgia O’Keefe walked down the first block towards her studio, she saw on her left a number of apartment buildings, and to her right she saw a gas station, a grocery store, and a few homes. As she walked down the second block, she could see more apartments and more homes on both sides of the street. It was twilight. The street lamps were on. There were three street lamps on each short block: one in the center and one at each end. The apartment buildings, homes, and stores had exterior lights that were turned on. The evening sky was clear.

G. Exhibits and Visual Aids

As previously highlighted, the use of visual aids and exhibits can significantly increase the effectiveness of an opening statement. These devices help fact finders understand the evidence and help advocates accurately and persuasively present openings. Visual aids may be created exclusively for use during opening statement. Exhibits that will be real or demonstrative evidence during the trial or hearing can also be used. See Chapter 8.

Exhibits vary from simple diagrams to video presentations to computer generated reconstructions of events. The content of some visual aids will be obvious (a printed poster), while others may need to be previewed (a software demonstration). The nature of the demonstrative aid will determine whether it needs to be reviewed by all counsel before it’s used.

Some jurisdictions and forums have specific restrictions about the use of visual aids and exhibits. Permission for their use will need to be sought before the opening to avoid an interruption or objection from opposing counsel. While many common demonstrative exhibits are routinely admitted, those that are unfamiliar or unusual may need to be approved.

Example (Injuries):

You will see some horrific images of the plaintiff’s injuries and gruesome scenes of the terrible event during this trial. Some of them will be difficult to look at. But you need to see them so that you can understand the full extent of the plaintiff’s injuries. They are not shown to you for their shock effect. If they do trouble you, remember that they are only a pale imitation of what the actual injuries were and they are much less horrible than if you saw the real injuries in the flesh. I’m going to show you a few now. This first shows how the plaintiff, Constance Langdon, looked before the tragedy.

Example (Product Liability):

Please look at the monitors in front of you. Here is a chart listing the design and manufacturing defects. This first column in blue lists the defects. This second column in green lists the dates when the defendant Transformers Incorporated, and its managers, first knew about the defects, and this third column in red lists what injuries the defects caused. This chart will help you understand what went wrong, when it went wrong, and why it went wrong.

H. What Happened

The fact finder obviously needs to know what happened. The evidence shapes the parameters of the story. A description of what happened includes references to the parties, the scene, and circumstances. An effective description includes statements that are objectively accurate, complete, and believable. A description that is too abstract, subjectively biased, or incomplete is not persuasive.

Example (Criminal Case):

Zatanna Zatara was holding the straps of her magicians bag in her right hand as she walked toward the Justice League. The defendant came up to her and grabbed one strap of the bag and attempted to steal it from her. She immediately looked right at the defendant, and instinctively gripped the handle of the bag tightly. As he tried to pull it from her, she again stared at the defendant and pulled the bag towards herself. He held onto that bag, and was pulled closer towards her until the defendant’s face was only about a foot away from Ms. Zatara’s face.

I. How It Happened

An issue in a case often revolves around the question of how something happened, and an explanation will be part of the opening. A clear description of the “how” of what happened is essential.

Example (Civil Case):

Trung Trac suffered a ruptured disc in the accident. We will learn from the doctors who will testify that a spinal column is made up of a number of bones or vertebrae, one on top of the other. Between each of these bones is a disc called an intervertebral disc. This model shows the vertebrae and discs, and will help us understand how the severe and painful injuries suffered by Ms. Trac happened. This disc is shaped like a donut and acts like a shock absorber. The center of the donut is filled with something called nucleosis pulpesis, a gelatin or jelly-like substance. If the vertebrae are jammed together pressure can be put on these “donuts” and the “jelly” squirts out the side (descriptive gesture). This is a rupture and the injury is called a ruptured disc.

Example (Civil Case/Third Party Defendant):

The evidence will show that it was the Minions who were at fault. They didn’t oil the machine; they didn’t check the machine’s temperature; and they didn’t replace the worn parts. The defendant did not cause the contraption to explode and did not cause the plaintiff’s injuries. The Minions did it all. The evidence will show that the defendant is not accountable for what happened, but rather the Minions are the irresponsible parties.

J. Why It Happened

Explaining the “what” and the “how” of a story may not be sufficient if the “why” has not been explained. Motive or motivation may be an element to be proven or may be critically important to winning the case. And the fact finders will be curious about why something happened. If a good reason exists to explain the “why,” then a concise explanation should be included in an opening. If no good reason exists to explain an event, then an explanation can be avoided.

Explanations of why something happened usually are limited in an opening because a detailed or lengthy explanation may go beyond the evidence of a case and become improper argument. If an explanation cannot be based on direct or circumstantial evidence, then a full account should be reserved for final argument.

Example (Administrative Case):

Why were the plaintiffs in a hurry? Because they were late for the start of the Minecraft adventure game.

Example (Medical Negligence Case):

This is a case about medical negligence. Doctor Meredith Grey was careless when she performed surgery on the plaintiff. She is not a bad doctor. She is not unfit to practice medicine. She made a critical mistake and must be held responsible the same way any professional must be held responsible for a serious mistake that causes pain, suffering, and damages. She made a grievous mistake because she was fatigued and exhausted. She had been up all night working at the hospital and hadn’t slept. She could have taken a break and rested, but she chose not to. She could have sought assistance, but decided against it. She acted very irresponsibly and must be held accountable for her negligence.

K. Disputed Issues

The fact finder needs to focus on the disputed issues between the parties. A reference to the conflict in the evidence or testimony helps define what needs to be decided.

Example (Jury Trial Tort Case):

There will be a dispute in the evidence presented to you—a disagreement about who saw what. Ren Suzugamori will say the light was red, while Lyserg Diethel will say the light was green. The lawyers and the witnesses know about this dispute because we have had the opportunity to learn about the facts of this case before coming to trial so we know who will say what. After hearing everything, we believe you will agree that Ms. Suzugamori is wrong and Mr. Diethel is right and find that the light was green.

Example (Administrative Contract Case):

The dispute between the parties in this case resolves around who is to blame for the breach of the contract. Each side blames the other side. We contend the plaintiff Wyldstyle is to blame for the breach and there are three factual reasons why. First. . . .

L. Claims and Defenses

In most cases, references to the claims or defenses should be made. These descriptions focus attention on what must be decided.

Example (Arbitration Claimant):

The evidence will show that Akbar Shah failed to perform under this contract and failed to deliver the precious unique gem that he promised to deliver to Daria-i-Noor. An issue Your Honor will need to decide is whether the diamond that Respondent sent was the specific one-of-a-kind diamond Claimant ordered under their agreement. The evidence will show that he sent the wrong gem and then refused to send the real gem or return her initial $745,000 half-payment. Daria-i-Noor wants what she legally contracted for —the pale pink precious diamond for which she will pay the final balance of $745,000 or her money returned.

Example (Arbitration Respondent):

The primary issues Your Honor will need to resolve are two: (1) whether this copy of an emailed document is legally enforceable and (2) whether Daria-i-Noor has committed fraud. The evidence will show that there was never a firm price agreed upon for the diamond that was sent on approval. And further evidence will show that she committed blatant fraud by returning to Respondent a fake and not the real gem. There was and is no enforceable agreement between the parties about the price of the real gem and Akbar Shah is entitled to the return of the actual gem he sent to her or to keep the $745,000 payment.

M. The Law

The advocate may refer to the law and may blend an appropriate discussion of the law with the facts. Trial counsel may not explain the law in detail to a jury.

Example (Negligence by Defendant):

You will learn that there was a stop signal at the junction of Boardwalk and Park Place and that persons teleporting through that location must come to a complete halt and check all directions before proceeding to jail in Portmeirion. The evidence will show that the defendants failed to come to a full, complete stop at this crossing as they were required by law to do.

Example (Lack of Negligence):

Judge Edward Coke will instruct you that negligence is the failure to exercise ordinary care or the failure to do something that a reasonable prudent person would have done under the same or similar circumstances. When you apply this legal standard to the facts of this case, it will be clear that the defendant Rachel Lapp did exercise ordinary care in operating her autonomous buggy and is not responsible in any way for the accident.

N. Burden of Proof

If the judge in preliminary instructions does not explain to the jury the burden of proof in the case, it may be appropriate to briefly mention the burden in the opening statement. A reference regarding the burden may need to be brief because comments about matters of law are limited. A reference to the burden should be made if doing so is tactically advantageous. Section 2.13 discussed burden of proof strategies.

Example (Civil Case):

This is a civil case. The burden of proof in this case is called “preponderance of the evidence.” That means that the plaintiff wins if it is more probable than not that her story is true. We will prove what the plaintiff said happened – that it actually did happen. The burden of proof is not beyond a reasonable doubt, which is a much heavier burden that applies in criminal cases, and not in civil cases. Judge Trudy-Kessler will explain this lesser burden of proof at the end of the trial, and we will apply it to the facts showing you why the plaintiff is entitled to your verdict.

O. Damages in a Civil Case

In a civil case, the plaintiff needs to explain all the types of damages, injuries, expenses, costs, and other recoverable compensation. In a contract case, the damages may be computed by referring to the terms of the contract or by establishing the lost income or profits. In a tort case, personal injury damages should include an explanation of the injury, diagnosis, treatment, and prognosis of temporary or permanent injuries.

Example (Personal Injury):

This case is about what heartbreakingly happened to Harvey Dent. He was one normal healthy person before the accident and another disabled disfigured person after. Your task is to put a value on those differences between what Harvey once was and what he has become and will remain for the rest of his life.

Example (Pain and Suffering):

Laszlo Almásy will tell you the agonizing horrors he went through during four months of intensive harrowing burn treatments. He will describe how his twice daily bath was so unbearably painful he screamed and cried. He will tell you that he has never experienced any pain like the excruciating pain caused by his burns. He will explain that he couldn’t use enough drugs to stop the pain because the drugs made him sicker or were addicting. He’ll describe the terrible tormenting pain with which he has to live, despite the ongoing care Hana provided him.

P. Amount of Damages

Lawyers who prefer a detailed description of damages want the fact finder to know from the outset the extent of the damages sought. Mentioning a dollar amount creates a frame of reference, provides some guidance during the case, establishes the extent of the damages, suggests that the attorney knows what the case is worth, and preconditions the fact finder to a request in summation for an appropriate damage award.

Attorneys who prefer a minimal description of damages want the fact finder to first hear the details during the presentation of the evidence. Not mentioning the dollar amount during the opening delays the disclosure of damages to the introduction of damage evidence, creates suspense, avoids confining the lawyer and witnesses into set positions, and gives the fact finder an opportunity to hear the witnesses describe the injuries before a request for specific damages is made.

If the injuries that caused the damages are slight, less emphasis should be placed on them. If the injuries that caused the damages are great, more prominence should be placed on them during the opening. In jury trials, references to damage amounts may also be made during jury selection that may influence what should be said during the opening.

Example (Damages Described):

This case involves the irresponsibility that Matrix Solutions bears as a result of its illegal and illicit computer hacking scheme. The law measures the amount of responsibility in dollars. You will hear evidence about the substantial lost profit damages that Mr. Neo has suffered as a result of the breach of security, the extortion, and the violation of privacy. These total damages amount to $9,672,000, which is a significant amount of money—but an amount which is very fair and reasonable because the responsibility defendant owes to plaintiff is equally substantial.

Example (Damages Reserved):

At the conclusion of the case, we will discuss the evidence that you have heard. We will ask then that you return a verdict that fairly and adequately compensates the Bar-ba-loots for what they have endured. We will also ask you to return a verdict that will include punitive damages—damages that punish Once-Ler Factory for gross and willful misconduct. Punitive damages are available under the law in cases like this when a company destroys food-producing truffula trees causing famine and rampant disease. Punitive damages tell the defendant it maliciously ravaged the environment and should never do it again. The defendant corporation has a net worth in excess of $500 million, that is over one-half of a billion dollars. At the end of the case, I will come back and ask you to award the plaintiffs a substantial amount of money that will compensate them for what happened and award them additional monies to legally and properly punish the defendant for its reckless and irresponsible actions.

Q. Request for Relief

An opening statement should contain an explanation of the outcome or verdict that the facts will support. This explanation should be clear so the fact finders understand the precise conclusion they must reach to find for a party. Some attorneys will say that the facts and law require that a specific award or verdict must be returned because the client is entitled to or has a right to such a result. Other attorneys explain that the fact finders have an opportunity, and even a duty, to decide in favor of a client based upon the law and facts of the case.

Example (Civil Arbitration):

That concludes my opening. You’ll hear from the witnesses and see from the documents that the facts convincingly support the legal defenses we have asserted. At the close of this arbitration, I will ask you to issue an award in favor of Forthright.

Example (Criminal Case):

These facts will prove that the Defendant is guilty of murder in the first degree. The testimony and exhibits will prove that the Defendant shot and killed J.R. Ewing. The evidence we described shows how the Defendant intended to kill Mr. Ewing, decided to shoot him, and planned to murder him three days before he actually killed him. These facts clearly prove that the Defendant is guilty of first degree murder beyond a reasonable doubt.

Opening Techniques

The following sections involve techniques for the effective presentation of an opening statement. These approaches need to be reviewed to determine their applicability to openings in particular cases.

A. Offensive/Defensive Approaches

An opening statement should lead the fact finder to a conclusion that the client is entitled to win. The plaintiff/claimant/prosecutor will naturally take the “offensive” and explain the story in a positive way. Some defense counsel may think it appropriate for the opening statement to be explained in a “defensive” way because the other side has the burden of proof. A more effective tactic may well be for the defense to begin by taking the offensive and explain what the defense evidence will prove and then defend the case by stating what the opponent’s evidence won’t prove.

Counsel for the defense must decide whether and how to respond to opening remarks by the opposing attorney. Defense counsel should be careful not to appear unconvincing by responding in a completely defensive way. The opening should describe the case of the defendant/respondent and, after that story has been narrated, respond to the extent necessary to statements made by the other side in the initial opening statement. Even in a criminal case where the defendant will not testify, the opening statement for the defense should be as positive as possible. The defense will present evidence through cross-examination of the prosecution’s witnesses, and this information can be used to support reasonable doubt.

During an opening by a plaintiff/claimant/prosecutor, counsel may raise some questions or make some remarks that suggest the attorney for the defense should answer or address during the opening for the defendant/‌respondent. The defense lawyer should present the prepared opening statement and may respond to this tactic if a response is necessary or would be more effective than not responding.

Example (Civil Case):

At the end of her opening statement, counsel for the plaintiff suggested that I should tell you what facts we had which differed from the facts she explained to you. You may have wondered why I didn’t respond to the question Alicia Florrick raised until now. The facts that I just explained to you, that you will hear from the witnesses who will testify and which you will read in these documents, will answer those questions. There’s no need for me to do what you’ll do later during your deliberations. You’ll review and rely on these facts to lead you to the one and only right conclusion: a verdict for the defense.

B. Anticipating Defenses

After making an opening statement, the plaintiff/claimant/prosecutor has no opportunity for rebuttal after the defense opening. Defenses commonly need to be anticipated and dealt with in the opening. In civil cases, the plaintiff will know and can explain away the defenses. In criminal cases, the prosecutor will know or may anticipate the defenses.

Example (Accident Case):

The defendant cannot avoid responsibility in this case by telling you the accident was Alice’s own fault—that she wasn’t watching where she was walking. After considering all the evidence, you will learn this was an area where people walked all the time and no one, including Alice, expected there to be a hole in the ground.

Example (Car Mishap):

Now I must tell you that the defendant will try to put the blame for this accident on Jackson Pollock. The defendant will claim that he was intoxicated and unable to drive safely. But you will learn there was no warning sign for the sharp curve on Spring-Fireplace Road and that fact caused the violent accident. There is no evidence that Mr. Pollock was driving drunk that day. A forensic artistic animation that accurately recreated the events will prove Mr. Pollock was driving the posted speed limit and could not have slowed in time to avoid his tragic death.

In criminal cases, the constitutional rights of the defendant limit comments that can be made by the prosecution. The prosecutor may not directly comment on evidence the defense may produce. A prosecutor can explain evidence that will be introduced during the prosecutor’s case and state indirectly that such evidence overcomes potential defenses, but the prosecution cannot comment on possible testimony by the defendant because the defendant need not and may not testify or present evidence.

C. Asserting Promises

A “promise” that specific evidence will prove a certain fact can be effective as long as the advocate can fulfill that pledge. A promise that is not kept causes the fact finder to lose confidence in the attorney and in other facts as well. Assurances must be employed carefully. If an attorney does make promises during an opening or otherwise asserts that certain evidence will be proved, the opposing lawyer should note all these statements and during summation highlight all pledges not kept.

Example (Civil Case):

We will present compelling evidence showing the defendant lied to the plaintiff about the value of her estate. After hearing this convincing evidence, you’ll conclude that the defendant misrepresented the facts and defrauded the Duchess of Sussex. At the end of this case, I’ll ask you to put us to the decisive test: Did we prove to you what we said we would prove? If we have, we’ll ask you then for a decision in our favor and against the defendant.

D. Employing Understatement

Understatement can be a useful credibility-building device for an opening statement presentation. Understating a case sets the expectation of the fact finder at a level that will be exceeded during the trial or hearing. The presentation of the evidence will then surpass the fact finder’s expectations, enhancing the credibility of the case and the attorney. Understatement may also arouse curiosity. If the attorney does not describe all the details of an event or a conversation during the opening, the fact finders may pay special attention because they have been eagerly waiting to hear or see the evidence. The use of understatement does have disadvantages. It may reduce the lawyer’s ability to explain facts in a persuasive way, and a fact finder may initially perceive an understated case to be weaker than the lawyer intended.

Example (Civil Case):

Judy and Doralee talked that day about Violet and her future with the group. They will testify and tell you what they said. When you hear the details of this evidence, you will understand the thrilling and harrowing plans they had for Violet from 9 to 5.

E. Avoiding Overstatement

Advocates should avoid the use of overstatement during an opening statement. The fact finder may be initially impressed, but this impression will not last long once it is realized that the evidence does not match what the attorney proffered. And, opposing counsel may comment during summation about the absence of the exaggerated evidence, further reducing the reliability of the advocate’s description of the facts.

F. Asserting Challenging Positions

The facts and issues in some cases will be more challenging for advocates to promote and more difficult for fact finders to accept than in other cases. Often, it is easier to prove that a person was negligent, failed to do something, or made a mistake rather than having to prove that a person intentionally did something, acted very unreasonably, or lied. For example, in a negligence case where contradictory statements were made by the plaintiff and defendant regarding the color of a traffic light, the plaintiff can win by proving that the defendant could not accurately see the color of the light or was confused about the color without proving the defendant is a liar.

In some cases, the more challenging position is an element of the proof and must be directly addressed in the opening. For example, a discrimination case may require the plaintiff to prove the defendant committed an intentional discriminatory act that the defendant denies. In the opening, the attorney needs to confidently assert the defendant acted reprehensibly.

Example (Civil Plaintiff):

We will prove to you that the defendant stated that he didn’t want “them” and “those immigrants” working for him, and the evidence will show he meant the plaintiffs. Defendant D.W. Griffith was a racist, and by the end of this case, it will be very clear to you that he is a racist.

Example (Criminal Defendant):

I will prove to you that the witness for the prosecution is a liar. Fletcher Reede, whom the prosecutor has described as the key witness in this case, has lied a number of times in the past regarding what he did on Thanksgiving. He lied to the police when they questioned him. And he lied to a judge in a previous court hearing, after taking an oath—the same oath he will take in this case—to tell the truth.

G. Describing Case Weaknesses

An attorney must consider whether to describe weaknesses in a case. Major problems or concerns that will be brought out through evidence must be presented in a forthright manner. Significant weaknesses in a case that have not been explained and most likely will be mentioned during the opponent’s opening or later in the case may need to be addressed during opening statement. A candid disclosure usually enhances the appearance of sincerity and the credibility of the lawyer while reducing the impact of the opposition’s strong points.

Example (Negligence):

A moment ago, I told you that I would describe everything that happened. You will learn that the plaintiff Amanda Bonner had stopped at a local bar on her way home from her law office. Ms. Bonner will tell you herself that she had dinner and two glasses of wine with her dinner an hour before the accident. The evidence will show, however, that those events did not cause the accident, which happened only because the defendant foolishly ran a red light smashing his SUV into plaintiff’s car. The defendant is the irresponsible party in this case, while Ms. Bonner drove safely and deserves your verdict.

Example (Contract Arbitration):

We told you that we would put everything before you, the good and the bad. You will learn in this case that Beanie Baby has a criminal record—she was convicted of income tax evasion five years ago. But that has nothing to do with the fact that she had an employment contract with the defendant and that she has a legal right to her display commissions.

Example (Property Injury):

In the interest of fairness, and holding nothing back, you will hear evidence from Dexter Morgan that he was a trespasser—he did not have permission to be on the property when he got hurt. But you will learn that the owner, the defendant, as required by law, must take care not to injure people who are on her property whether they have permission to be there or not.

H. Explaining Absent Evidence

During the opening the advocate can describe what facts will not be proved, what documents will not be introduced, and what evidence will not be presented, and briefly explain why such information will not be offered. Usually, this explanation is appropriate where evidence does not exist or was not preserved. Fact finders may wonder why some evidence is not introduced, and this tells them what they will not hear or see.

Example (Missing Witness):

The float plane was behind schedule when Jerrie Mock boarded it, with the help of the bush pilot. She will tell you it was over a day late. The bush pilot of the plane will not be able to tell you how late it was because he moved away from our village over a year ago and cannot be located despite all of our very best efforts to find him.

Example (Administrative Evidence):

The evidence will confirm that Kinner Airster did insufficient and deficient testing on this biplane model and that they could and should have scheduled additional testing before placing the plane in service. Our renowned expert, Dr. Sheldon Cooper, will testify that in his professional opinion adequate and proper testing would have clearly shown the biplane to be unreasonably dangerous and defective.

I. Making a Compact

In jury trials, the advocate may make a compact with the jurors during the opening. The attorney may promise them that counsel will never mislead or misdirect them or intentionally misstate any evidence or exaggerate the facts. The attorney may ask the jurors to hold counsel to this statement and to also hold the opposing lawyer to the same standard. This approach may impress the jury with the sincerity of the attorney and reduces the chances the opposing lawyer will engage in misdirection or exaggerations. This tactic can be used in situations where there is a concern the opposing lawyer will present an unfair and improper opening.

Example (General):

Everything I’ve told you in this opening about the evidence is what you will hear from this witness stand and see and read in these dispatches. I will prove that the appalling events in this historic case happened the way I just described. I ask you to hold the other parties, Grigori Rasputin and the Romanovs, to this same sensible standard.

J. Qualifying Remarks

In jury trials, some attorneys emphasize to the jurors that what an attorney says during opening does not constitute evidence. Other lawyers may explain that the function of the jury is to determine the facts after hearing the evidence during the trial. Comments like this reduce the impact of an opening statement presentation and are often unnecessary because the same statement may be contained in the judge’s preliminary instructions to the jury. Defense counsel may want to make such comments in an attempt to reduce the effectiveness of a particularly persuasive plaintiff’s opening statement and to remind the jurors that they must wait to determine the evidence until it is introduced during the trial.

Example (General):

You will hear a lot of lawyer talk in this case. You have just listened to the opening statement for the plaintiff by his lawyer, Patty Hewes. What we lawyers say is not evidence. The judge will tell you that you are not to decide this case based upon what we have said but rather on what the evidence will prove. You are not to rely on lawyer talk in reaching the verdict in this case. You are to rely on the testimony of the witnesses who will come before you and testify and the documents that will be introduced. Now let me describe what the real evidence will show.

Presentation and Delivery

The way the advocate delivers the opening statement affects how a fact finder understands the facts and issues in the case. The attorney can present a clear story, emphasize strong points and significant issues, and shape the outline of the case. How an opening is presented is as important as what is being presented. The following factors are matters that affect the quality of the opening. These factors supplement presentation and delivery considerations explained in Section 1.8.

Court and hearing rooms need to be accessible for all participants. The applicable law or regulations may require reasonable accommodations to be provided and barriers removed. Some of the following suggestions may need to be modified or personalized to reflect the capabilities of counsel. If a hearing or court room has insufficient facilities, it may need to be altered or another room designated. All counsel need to be aware of these issues and provide appropriate support and assistance.

A. Positions and Transitions

Advocates typically conduct opening statements in trials standing behind or by a lectern or table in front of the fact finder. In arbitrations and administrative hearings, the opening may be delivered sitting down. Trial lawyers may be able to conduct an opening while standing openly before the jury, and if preferred, may ask the judge for permission to do so. Wherever located, advocates should be in the direct view of the decision makers.

In some forums, the rules or practice require that the attorney stand behind a lectern without moving around when presenting the opening. In these situations, the attorney can ask permission to stand away from the lectern in order to make a more effective presentation. If the attorney must remain at a lectern, visual aids or exhibits may be used to emphasize points and to provide an opportunity for movement away from the lectern.

Some movement is useful, particularly if the opening is long. Location and positioning should be orchestrated so as not to be distracting. An attorney may use purposeful positioning as a transition or to provide emphasis. Random movements are disconcerting and are to be avoided.

The advocate must maintain an appropriate distance from the fact finder. This distance should neither be so far away that personal contact is lost nor so close that a fact finder feels uncomfortable. The optimum distance varies depending on circumstances. An advocate can observe reactions and move close when appropriate and move further away when necessary. For example, when an attorney approaches a jury box, the attorney may stand in front of jurors in the first row, speak with a quieter voice, and make eye contact with jurors in the second row.

An opening statement is more effective if the advocate employs transitions. Prefatory remarks, silence, a louder voice, a softer voice, visual aids, and movement can signal a change. A well-structured and organized opening will include evident and observable transitions.

B. Deportment and Bearing

The advocate should coordinate body language, facial expressions, and mannerisms to enhance the opening and to avoid distractions. Appropriate gestures should appear natural. Effective eye contact can hold the attention of the fact finder and allows the lawyer to observe reactions.

Appropriate mannerisms help establish sincerity and credibility. Fact finders will become bored with a static talking head, which is all that they might see if the attorney stands behind a lectern without using any gestures, movement, or visual aids. Wild gesticulations, flailing hands, random pacing, staring aimlessly, fiddling with pens, and playing with laptops or smart tablets are distracting actions and are to be avoided.

The deportment exhibited by the advocate can influence the impressions formed by the fact finder about the attorney and the case. The bearing and carriage of the lawyer should be consistent with what is being presented. These factors can enhance the appropriate and proper attitude displayed by counsel.

C. Observing the Fact Finder

The advocate must observe a fact finder’s reaction during the opening statement and adjust the presentation when necessary. Initial impressions displayed during the opening will be useful in determining how the evidence is later presented and what might be an effective closing argument position. However, it is difficult to determine accurately what people are thinking just by watching them during a presentation. Care must be taken not to overreact and not to change an approach because of a perceived reaction which may be inaccurate.

D. Notes and Outlines

An effective use of notes done openly is appropriate. The advocate should avoid pretending they are not being used. Fact finders understand the need to use notes and expect advocates to rely on them. A prepared outline can be effectively employed in an opening as a visual aid. A diagram, whiteboard, easel paper, document camera, presentation software, and computer monitor may contain an outline of the opening that highlights important matters and assists counsel in explaining the case. Lawyers need to rehearse a planned presentation with notes and outlines.

E. Visual Aids and Exhibits

As mentioned previously, the use of exhibits and visual aids can enhance the manner of the presentation and favorably affect the impact of the opening. Important segments of real and demonstrative evidence exhibits may be shown to the fact finder to help explain the case and highlight key facts and issues. Documents may be displayed and explained. Visual aids and graphic depictions can be crafted for use during the opening to make the evidence and issues understandable and memorable. See Chapter 8.

Objections and Motions

A. Improper Comments

Certain statements and comments made during an opening are objectionable. References to the following evidence and topics are improper and may also be unprofessional and unethical.

1. Referring to Inadmissible or Unprovable Evidence

Counsel must not refer to inadmissible evidence or unprovable facts during opening statement. This prohibition extends to evidence excluded by pretrial or prehearing rulings, or likely to be excluded by the rules of evidence, as well as facts, opinions, or inferences that are not supported by evidence. The standard for determining whether an attorney may refer to specific evidence is whether the attorney has reasonable, good faith grounds to believe the evidence is admissible. The standard to determine whether a matter can be proved is whether there is a source of admissible evidence to prove the matter. The opening statement is not to be used as a subterfuge to present inadmissible or nonexistent evidence or to circumvent the rules of evidence and professional responsibility.

Objection:

Counsel has referred to evidence that is neither admissible nor provable in this case. We request those statements be stricken and counsel admonished for making such references.

Response to Objection:

• Explain the evidence law that supports the admissibility of the questioned evidence.
• Describe the source of evidence that supports the statement.
• Advise the judge/arbitrator/ALJ and opposing counsel before opening that there will be a reference to potentially objectionable evidence, and seek a preliminary ruling as to its admissibility.
• Rely on a previous motion in limine ruling that may support the use of the evidence.

2. Explaining Details of the Law or Jury Instructions

The attorney should not explain details of the law, or assert arguments, or describe instructions to a jury. While making brief references regarding the law in the case is proper, lengthy explanations are improper. These comments may be made in summation.

The precise extent to which an attorney may refer to the law during an opening varies among jurisdictions and among judges. Some courts strictly limit counsel’s explanation of the law during opening statement, while other courts permit reasonable latitude to the lawyers to explain the law applicable to the facts. See § 6.1(B).

Objection:

Counsel is improperly explaining the law or jury instructions during opening statement.

Response to Objection:

• Avoid lengthy or detailed references to the law or jury instructions.
• Briefly mention the law or instructions several times during the opening, rather than describing it in one lengthy explanation.
• Combine a description of the facts with an explanation of the law to make these statements sound more factual.
• Use prefatory remarks such as “The evidence will establish” before explaining the law.
• Remind the jurors that it is the judge and not the attorneys who will explain the law to them.

3. Making Argumentative Statements

Counsel should not make argumentative statements during the opening. The opening statement is an opportunity to present the evidence that will be offered and not to argue issues in the case. See § 6.1(B).

Objection:

Counsel is making argumentative statements.

Response to Objection:

• Explain that the reference to the facts, law, or case is proper for the opening and is not an argument.
• Avoid speaking with an argumentative tone of voice, or with over-emphatic gestures, or in a loud, assertive manner.
• In a jury trial, request a bench conference to avoid being admonished by the court in front of the jury.

4. Stating Personal Beliefs and Opinions

The attorney cannot give a personal opinion or belief vouching for the evidence or a position. The fact finder is to determine the case based upon the facts and the law and not upon the personal convictions of the lawyer. Phrases such as “I personally believe” or “It is my opinion” are objectionable. Counsel may say “I will prove” or “I submit” because counsel is asserting a professional position as long as there is supporting evidence.

Objection:

Counsel is stating a personal belief or vouching for an opinion.

Response to Objection:

• Rephrase the remarks and avoid interjecting personal ideas and opinions.
• Use phrases such as “We will present evidence to you that will show” and “You will learn that” rather than phrases that proffer or suggest personal beliefs.

5. Putting Fact Finders in the Place of the Party

Counsel may not ask fact finders to put themselves in the place of a party or witness in determining an issue. They are to base their decision on the evidence and not substitute their personal experiences or reactions for that of the evidence presented in the case.

Objection:

Counsel is improperly referring to personal experiences of the fact finder.

Response to Objection:

• Avoid suggesting fact finders rely on personal experiences.
• Save references to common life experiences until summation.
• Use general references to real life or common sense. For example, “Mr. Burns did what most people would do” and “Ms. Allen used common sense when she turned on the radio to listen to the comedy hour.”

6. Speculating About the Other Side’s Case

In a criminal case, a prosecutor cannot suggest what the defense will prove because the defense has no obligation to prove anything. In a civil case, speculation about the other side’s case may be argumentative, may not represent what the evidence will show, and would be improper. Comments regarding what known evidence will be introduced is proper.

Objection:

Counsel is improperly speculating regarding what we will prove.

Response to Objection:

• Explain the statements relate to evidence the other side will introduce and are proper.
• Explain it is necessary to comment on facts the other side will prove in order to provide a balanced view of the case.

7. Making Disparaging Remarks

Counsel may not make remarks during opening statement that disparage opposing counsel, the opposing case, the opposing party, or witnesses. Such conduct is improper, unfairly prejudicial, and unethical. The advocate can ask the decision maker to reprimand the offending attorney. Severely disparaging remarks may be a ground for a mistrial.

Objection:

Counsel is making improper remarks by saying that I was mendacious. I ask your Honor to admonish counsel and insist that counsel apologize.

Response to Objection:

• Try to explain that the remarks are not improper.
• Refer to evidence or remarks by counsel for support.
• Admit a mistake and apologize.
• Accept an admonition from the court without argument.

8. Additional Prohibitions

The issues involved in specific cases may further restrict certain references made during opening statements. In a personal injury case, references to liability insurance are inappropriate. In a criminal case, a prosecutor cannot comment on the refusal of the defendant to testify. In all cases, counsel may not refer to matters that may overly influence the passion or prejudice of the jury, such as irrelevant appeals to the family circumstances of a party or references to the wealth or poverty of a party.

B. Objections

It is preferable that openings are presented zealously and without interruptions. An objection may be necessary to correct a major error and preserve it for appeal.

If an objection is made during opening, there will be a ruling on the propriety of the objection. If the objection is sustained, the attorney should correct the mistake and continue with the opening. If the objection is to the content of the opening statement, then the subject ought to be avoided. If the objection is to the form of the statement, the statement can be rephrased. If the objection is overruled, the attorney should continue with the opening and may repeat or emphasize the statement, and may preface it with “As I was saying” or “Before the interruption.”

Tactically, an advocate may decide not to object but rather note what was said and use this against the opposing lawyer in closing argument. Counsel should allow the opposing lawyer to complete their opening uninterrupted, unless the opponent is saying or doing something that is clearly improper and quite damaging to the case.

C. Curative Instructions

In jury trials, after an objection has been sustained, the objecting lawyer should consider asking the judge to instruct the jurors to disregard the improper comment. This curative instruction may reduce the negative impact of the unsuitable remark. Some jurisdictions require the instruction be requested to preserve an issue for appeal. A request for a curative instruction may call more attention to the improper statement, however, and ought not to be made if the disadvantage caused by highlighting the improper comment outweighs the effectiveness of the instruction. See § 4.5(D).

D. Opening Statement Motions

An opposing party may bring a motion to dismiss or for a judgment as a matter of law or a directed verdict on an issue in the case based on admissions made by counsel during opening statement. Admissions made during the opening can have a binding legal effect on the party. Because the opening is a major part of the ongoing case, facts conceded by counsel may be binding admissions. This motion is seldom available because rarely will the opposing counsel make such adverse admissions.

A motion to dismiss or for a judgment as a matter of law may also be brought on the ground that the opposing party has failed to establish a prima facie case during the opening. Generally, the failure to mention specific evidence in the opening does not preclude subsequent introduction of the evidence. As long as the pleadings and previous proceedings placed matters in issue, the rules of evidence and not the scope of the opening statement commonly determine what evidence will be permitted.

In a civil case, a trial court has the discretion to grant a summary disposition based upon the opening statement of counsel. If an opening statement contains admissions or fails to refer to sufficient supporting evidence, there may be grounds for a motion to dismiss or for judgment as a matter of law. In criminal cases, a decision maker may direct a verdict for the defendant on the basis of the prosecutor’s opening statement if no reasonable juror could convict the defendant based upon the facts presented in the opening statement and available during the trial.

The purpose for a summary disposition based upon the opening statement is judicial economy. A trial is unnecessary if, based on the opening statement, it is obvious that no claim, defense, or case exists. Summary dispositions are rarely granted. Opening statements usually contain more than enough information to support a claim or defense. If a case is so weak that no facts exist to support a claim or defense, the weakness will be apparent at the pretrial or prehearing stage and the case should be dismissed or resolved at that time. If a summary disposition motion is granted, and evidence exists which was not described, the losing side can move to reopen the case and supplement the opening statement.

Other possible motions include:

• A motion to have limitations set on the opponent’s opening regarding time, scope, detail, and demeanor. If an attorney exceeds the reasonable standards for an opening, this motion may be granted.
• A motion by plaintiff to present additional facts in response to defendant’s opening. This unusual motion may be appropriate in a situation in which the defendant raises unanticipated issues.

E. Uncommon Problems to Avoid

Thorough preparation, comprehensive planning, and extensive practice—as well as this fascinating Chapter—have well prepared you to present an opening statement. It is worth the additional effort to review uncommon mistakes that need to be avoided and how they can be cured, including the following:

• A weak beginning. Open with your concise and compelling theory of the case.
• Confusing organization. Tell a narrative story.
• Being presumptuous. Remember how little the fact finders know about the case and how much you know.
• Avoiding serious weaknesses. Be candid.
• Failing to use appropriate exhibits. Use, when available, real and demonstrative evidence and visual aids.
• Referring to inadmissible evidence. Focus on relevant, reliable, and persuasive evidence.
• Arguing like a lawyer. Rely on effective oratorical skills.
• Poor delivery. Practice. Practice. Practice.

Now you are finally ready to begin with your opening.

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