Opening Statement - Strategies, tactics, and tips on how to make an effective opening statement.

[00:00:00] Speaker 1: Hello, I'm Mark Curry, a retired trial court judge with more than 34 years of total courtroom experience. In this video I'm going to be talking about the opening statement which is right at the beginning of a trial and it's a first opportunity for either the jury or the court to really hear your explanation of what the facts and the evidence are going to prove. In this video I'm going to be talking about some strategies and techniques you might want to consider, the importance of the opening statement as well as some of my own trial tips on what I feel makes an effective opening statement. Let's get started. Before I begin I just want to give my usual disclaimer and caution about how to use this video. So this video and the content is a summary from a handbook I've written called the practical trial handbook. So it's an overview of the basic rules and strategies, procedures related to trial practice. In that regard I'm not giving any type of legal advice. Further, the rules of evidence that I cite or the law you need to confirm that it is the current rules of evidence or law in your own jurisdiction. And lastly the strategies and tactics that I talk about in my trial tips are simply my own opinions about what I think makes an effective trial lawyer and other attorneys or judges may disagree and have their own viewpoints. So keep that all in mind as you're listening to this video. All right let's talk about the opening statement. Now the opening statement whether it's a bench trial before the judge or a jury is the first time that the fact finder will really heard much of the detail about the state about the case. If it's a jury trial, perhaps during void ire or introductions made at the beginning of the trial, the jurors might know a little bit about the case. But really the opening statement is where you're going to get into the meat of it and they're going to start hearing a lot of facts and evidence and what the theories of the case are. So I want to talk a little bit about the importance of it. Obviously the one of the main reasons it's important is that it's one of first impressions. There's been some jury studies out there and you can find them online or you can find the site in my handbook that suggests that as many as 80% of the jurors have already begun to make up their minds after the opening statement. So that's why it's so critical that you make one and you make a good one and it's thorough and comprehensive. One of the trial tips first ones I have regarding the opening statement in that regard therefore is that the jurors' initial impressions of the evidence following the opening statement is critical. Whether right or wrong, their initial impressions may last throughout the entire trial, do not shortchange the opening statement even in a court trial or a bench trial. So now I want to talk a little bit about making an opening statement in a bench trial. As a judge I presided over many court trials where I'm the fact finder. I make the decisions and a lot of times the attorneys sometimes they opted not to make an opening statement or they made an abbreviated one which is fine. But if you agree to if you if you're going to do that make sure the judge is fully on board that he understands he or she has read the trial briefs and is fully conversant with your case. If there's any doubt make an opening statement even in a bench trial. All right I want to go over a little bit about some of the procedures in the in a opening statement some of which you may already know. But some judges do put time limitations on the opening statement. I never did. But in that regard your opening statement shouldn't go on for days or hours and hours keep it relatively short and concise of course depending upon the nature of the case. Remember that you're up against what I call the game clock meaning the jurors at limited attention spans. So you need to compact all your information in concise and short manner so it's informative for the jurors. Generally in an opening statement the plaintiff or if it's a criminal case the prosecution goes first. Generally it's the party with the burden of proof makes the first opening statement followed by the defendant both in criminal and civil cases. Should you reserve or waive? If you're the defense in both civil and criminal you may have the option to make your opening statement at the conclusion of when the plaintiffs or the prosecution rests their case. In other words you can reserve it until after the the plaintiff rests. Now there might be some tactical reasons you may want to do that. Perhaps you're going to make a motion for a non-suit following the people's the the people's case or the plaintiff's case. But I want to caution you about that. Overall my opinion is that you should you should practically never reserve or make your opening statement later. And the reason for that is goes back to initial impressions. If you wait to give your opening statement then the jurors or even the court is not going to know exactly what your theories are or what the evidence is going to be from your standpoint. And you know you risk the fact that now they've heard the entire plaintiff's case and they haven't even heard your opening statement. So there might be again valid tactical reasons to reserve your opening statement but I would be very cautious about doing that. Also I want to talk about the use of exhibits during your opening statement and I've been labeled this important. Most jurisdictions and courts will allow the parties to to show the jury during the opening statement exhibits that they plan to use during the trial. For example photographs or diagrams that will be coming into evidence later. I feel this is so important again because the opening statement needs to be informative. If there are critical photos of an intersection for example if it's a case involving a car accident or that you might want to show them the jurors so they really understand your case from the beginning. So if possible use exhibits during your opening statement. One of my trial tips is during the pre-trial conference discuss with the court the procedures regarding the use of exhibits during the opening statement. For opposing counsel, in other words if you know that your opposing attorney plans to use exhibits request to preview the exhibits your opponent plans to use before the opening statement in the event there's something objectionable about it. And again the pre-trial conference or a motion in limine prior to the opening statements is a good time to discuss with the court if any exhibits are planned to be used in the opening statement. But generally, most courts will allow the use of exhibits in the opening statement photographs, diagrams, even a video. But write it by the court first. All right, I want to talk a little bit about what is the purpose of the opening statement. And I think it's a good idea. I'm going to cite some quotes and what some of the courts have said about what the purpose of the opening statement is. And one court said, quote, "to prepare the minds of the jury to follow the evidence and to more readily discern its materiality, force, and effect." Another court wrote, quote, "to provide the jury with a road map of what a party expects the evidence to prove. It may properly show how the evidence and all reasonable inferences that may be drawn from the evidence relate to the theory of the case." Another court wrote, "the opening statement is based on evidence a party anticipates presenting." Lastly, another court wrote, "an opening statement has a narrow purpose and scope is to state what evidence will be presented to make it easier for the jurors to understand what is to follow and to relate parts of the evidence and testimony to the whole. It is not an occasion for argument." And towards the end of this video, I'm going to talk a little bit about argument versus in an opening statement and how that's prohibited. If you want to see the citations for those cases, you can refer to my handbook. So let's talk a little bit about a strategy. In other words, you're preparing your opening statement. How do you want to lay it out? And so here's a strategy or that you might want to consider when you're designing your opening statement. I would first begin my opening statement with a very brief introduction perhaps of reminding the jurors or the court what the nature of the case is, what the fact, what the charges are if it's criminal, what the causes of actions are, and summary. So a brief introduction might be the very first thing you talk about. Then you want to relate the evidence like a roadmap to the jurors or to the court. And I call this a story told twice. So essentially under this strategy, you're going to be explaining your case and your theory of the case two times to the jury. The first go through is going to be more like what I call a campfire tale. So imagine that you're sitting around a campfire with a good friend at night and you want to tell your friend all about your case in 10 minutes or less. And so you're basically just going to relay it in a narrative fashion from beginning to end like you would tell someone an interesting story. And this is how you should begin your opening statement to the jurors. And so one of my first trial tips is before you get to the specific details of the evidence, explain what happened from your client's perspective from beginning to end and without interruption in no more than 10 minutes or so. Some attorneys like to immediately recite a short dramatic prologue, but be cautious that it doesn't seem melodramatic. You may lose credibility with the jurors if they get the sense that you're play acting. So that's how I would begin my opening statement is just kind of give a 10 minute story of what happened beginning and don't digress, don't skip around, go right through it in a very narrative format. Just as if you were trying to tell a friend, like I've mentioned, around the campfire in 10 minutes, the evidence will show. Now, the second time you're going to say it again, but this time it's going to be more analytical. And so what you'd say is, ladies and gentlemen, the jury, now I'm going to explain a little bit more to you how I'm going to prove my case. And in this part of your opening statement, you might run down the order of your witnesses and just give a very brief summary of what you expect they're going to testify about. If you're calling an expert witness, you might explain, you know, who the expert is and a summary of what the expert is expected to say during the testimony. If you're going to call your client to testify, you would summarize it. My client will get on the stand and tell you A, B, C, or D. And so you're, you're breaking your, you're going through in more detail, what the evidence is and the facts on your case, um, in a more analytical fashion. So basically, at this point, the jurors have heard kind of the big picture, the summer you gave in 10 minutes, so everybody's on the same page, you've made an introduction, they know what the, the issues are, what's at the issue. And now the last, the second time you're going through it, more analytical, all the details. Um, and so now they'll know exactly, um, more precisely how you plan to put on your case. Now, some courts have kind of weighed in about this process of making a narrative, um, opening statement. Here's what a couple courts have said, just to give you a little bit of guidance. One court, court wrote, quote, "Nothing prevents the statement from being presented in a story-like manner that holds the attention of lay jurors and ties the facts and governing law together in an understandable way." Another court wrote, "It may be presented in a dramatic manner that is calculated to hold the juror's attention." All right, so now let's talk about a few more, um, tactics or strategies that you might want to think about when you're designing your opening statement. Uh, make sure that at some point in your opening statement, you've defined the issues. You've explained, as I've mentioned, uh, what the cause of actions are, what the theories are. Um, if there's unfavorable facts in your case, the opening statement is a good time to get them out. Um, to kind of, you're basically, you're stealing your, your opponent's thunder, so to speak. And you may, um, probably have already brought that out during Vore Dyer. Um, if you have bad facts, in almost all cases, there's something about your case that's a little bit weak, uh, you might, you know, a good time to bring it out is in the opening statement. Uh, you're not denying it. Later in your closing argument, you tell the jurors that, you know, you discussed it in during Vore Dyer, you brought it up in your opening statement, and it proved, it turned out just as you predicted. And you kind of shrug your shoulders. It doesn't mean anything. Um, use caution, and I put this in red, that means it's very important, about overstating or overselling your case. So, and often in criminal cases, you don't, you may not know, know exactly how the evidence is going to roll out until it does. So if that's the case, if you're, for example, it may not be positive, you're going to put your client on the stand, you know, don't make any representations that's not going to, uh, come true later on in the evidence. If you do that, if you oversell, overstate your case, all you're really doing is handing your opponent good fodder for closing argument, where they, when they stand up and say that during your opening statement, you know, counsel said he would prove this, that, or the other, and it didn't material, materialize, materialize. Another trial tip to consider, um, for your opening statement is listen carefully during your opponent's opening statement, take good notes. If representations are made during the opening that are not later proven, it may give you good fodder for the closing argument, kind of just what I just talked about. Now, as I mentioned, the opening statement, a good way to think about it is a roadmap designed to kind of give an outline of what the, you expect the evidence is going to show throughout the trial from your point of view. And there are some areas that are not allowed. And one of the courts, uh, I just mentioned a few minutes ago mentioned, and that is argument. Argument is prohibited during the opening statement. And so what is argument? Generally, it's when you're going beyond, uh, discussing just the facts and evidence. If you're going to start arguing inferences or deductions, or trying to put it together for the jurors and arguing what it all means, um, that could be considered argument. If you make rhetorical comments, for example, if you start appealing to the emotions of the jurors, or you start telling them why your case is so important, or, um, you know, that this is, uh, you know, you're really getting into more of an impassioned plea, um, that would be considered argument. It might also be considered argument if you comment on your opponent's case. Uh, so this is kind of a gray area. So in your opening statement, generally, you would not be permitted, uh, to start bashing your opponent's case before they've even made their opening statement. However, there could be exceptions to this. For example, let's say you're the defense in a criminal case. I think you would be permitted to, uh, to explain what the evidence is going to show on the case. And the evidence is going to show, um, through your questioning and cross-examination of the prosecution's witnesses, that it's faulty, that the prosecution won't be able to prove their case beyond a reasonable doubt. And you'd be able to go into what you expect the evidence to show, that witnesses will have trouble remembering, that your, that identification of your client's not clear. So I would not consider that to be argument, uh, but I would consider it more leaning more towards argument. If you just, um, really like, uh, treated it like a closing argument where you started, um, talking about everything that you anticipate, your opponent's going to present and tearing it down before they even have a chance to be, uh, to make an opening statement. So, again, the appropriate objection, um, if you feel your opponent's venturing in argument is objection on or counseling is arguing the case. And it'll be up for the judge to make a ruling on that. Um, here's a couple more trial tips regarding the opening statement. An opening statement should generally not take more than an hour. Now, that's a lot of time really. So, um, even for complex cases, for shorter trials, it may take considerably less than that or much shorter time. The key, the key to the whole opening statement is that at the conclusion, the jurors or at the court, if it's a bench trial should fully understand the big picture and the contested issues. If the opening is too long, so if you go on for a day or two or hours and hours, or if you put in too much information, you get too far out into the weeds, um, that too much information and too much detail is given, it might overload the jurors and start to begin to confuse them right from the beginning. So, you do want to kind of keep it simple, but you also want to have the jurors fully on board about the basic facts, what your theories are and what your evidence will prove, what your witnesses are going to say. So, this is just a really brief overview about the purpose of the opening statement. Just to recap, um, I really feel it's effective if you kind of do, as I've mentioned, you give them a very brief 10 minute or less overview, kind of in a narrative format without interruption. You're just telling the story. Uh, let's say it's a case where you're playing, you're the plaintiff's attorney and the plaintiff was injured in a car accident. You might just start out the story about how that morning she got up, everything was fine. She was taking her kids to school. She was driving down the street. She went through the intersection. The defendant was coming in the opposite direction. You know, we broadside her going 40 miles an hour. He ran the red light. Then you go on, talk about her injuries, how she went to the hospital, you know, and now all the injuries she suffered and all the damages she's incurred. And you can tell the whole story there in five minutes from beginning to end. Then in your second part of your opening statement, you break it down, as I've already mentioned, in more detail about how the witnesses will come in and what each one of them will say. And again, perhaps, uh, how the damages have been computed. So thank you very much. I realize, uh, covered a lot of information here in just a few minutes. If this is interesting to you, or you'd like to learn more, um, I would refer you to my handbook called the practical trial handbook. And what I did in my handbook is I covered the nuts and bolts, the fundamentals of a court or bench trial from beginning to end, from the motion and limiting all the way through to the closing argument and everything in between. And it's basically made for trial lawyers, kind of as a refresher of the basics and also for law students who are just kind of learning trial advocacy. And I break it down to every topic. For example, just topics on jury selection, the opening statement that we're talking about here today, direct and cross-examination. And by the way, I have other videos on cross-examination, how to impeach a witness, expert witnesses, courtroom evidence, how to mark evidence, how to introduce it, how to make good trial objections. And I have another video and it's also in the handbook on the closing argument. If you found this video interesting or informative, please give me a like and subscribe to my channel where you can access other short videos I've made on other areas of trial skills and see the links below. So thank you very much and good luck to you in the courtroom.