Purpose of the Opening Statement
The opening statement is one of the most important aspects of trial. It is one of only two opportunities counsel has to address the jury directly. Narrowly speaking, the purpose of the opening statement is to deliver a clear recitation of the facts of the case in a simple and non-argumentative fashion. But the opening statement is also a chance to persuade the jury (without crossing the line into argument) that the client should prevail at trial. In fact, many trial attorneys maintain that, practically speaking, a case is over after voir dire and opening statements, as the members of the jury often have made up their minds at that point, before hearing any evidence. While that is probably an overstatement, there is no question that the jurors’ viewpoint is profoundly influenced by the content of the opening statement and the manner in which it is delivered.
The opening statement can be used to paint a sympathetic picture of the client, or to humanize the client, particularly if the client is a corporation. It is also a chance to provide the jury with a road map for how the evidence will be presented, including introducing witnesses, both lay and expert, in a way that will make it easy for the jury to understand, especially in a complex or highly technical case.
As trial counsel, the goal is to communicate an opening statement in such a compelling and persuasive fashion that at its conclusion every juror thinks the following: “If the statements you just made are supported by the evidence we are about to see, I will decide this case in favor of your client.” Here, we will discuss three ways to achieve this goal: 1) communicating a compelling trial theme; 2) diffusing weaknesses in your case; and 3) preemptively attacking the opposition.
1) Trial Themes
Your opening statement should be built around a trial theme. An effective trial theme succinctly summarizes the essence of your case and resonates with the jury. Of course, you must be able to support the theme with the evidence presented at trial, so the key is to find a trial theme that will be appealing and persuasive to the jury, while at the same time remaining true to the facts. A trial theme often fills in the blank: This case is about ______________. Some examples of effective trial themes are:
a)Credibility In defending a corporation against a claim of discrimination, where the plaintiff has been impeached in his deposition, an effective theme could be articulated as follows:
This case is about credibility. You will see as the evidence develops that the plaintiff will swear to tell "the truth, the whole truth and nothing but the truth," and then proceed to not tell you the truth. This will occur repeatedly through this trial, and you will have to decide whether or not the plaintiff is a person you can believe and trust.
b) Betrayal In a case involving breach of a long-term partnership agreement, a theme of betrayal can be compelling:
This is a case of betrayal. My client placed her faith and trust in her business partner of many years only to discover that he had betrayed her by defrauding her of over twenty-five million dollars.
c) Corporate Greed and Fraud In a products liability case involving a medical device that was inadequately tested, corporate greed and fraud is a theme that can resonate with a jury:
This case is about corporate greed and fraud. The defendants represented to my client that the product was safe, had been thoroughly tested, and would last a lifetime, all of which turned out to be absolutely false. My client was seriously injured when she relied upon these fraudulent statements and used the defendants’ product without knowing that it was toxic and potentially lethal.
The trial themes illustrated above are effective because they can be easily understood by, and will resonate with, most jurors. It is important that an opening statement appeal to a jury's sense of fairness. While jurors generally follow the law based on the jury instructions presented by the court, jurors also have a strong sense of fairness and will often view the facts and law through the prism of what they believe to be fair. A strong theme expressed in an opening statement gives the jury an opportunity to apply this sense of fairness within the framework of the facts of the case and applicable law.
As noted above, a trial theme must accurately track the facts of the case. Not only would doing otherwise be unethical, but a trial attorney will quickly lose his or her credibility by putting forth a trial theme that is not supported by the evidence subsequently received by the jury. For example, if your theme is the plaintiff's lack of credibility, you must be able to prove from deposition testimony, documents, or other admitted evidence that the plaintiff has impeached himself. Of course, if your client also has significant credibility problems, this is a trial theme you should avoid in spite of the opposing side's lack of credibility. This brings us to the next purpose an opening statement can serve: to anticipate and diffuse weaknesses in your case.
2) Diffuse Weaknesses
If you are going to trial, by definition your case has one or more weaknesses. Otherwise, it would have been disposed of on summary judgment. The opening statement is your opportunity to address your case's vulnerabilities on your terms, before any harmful facts are brought into evidence (and if you represent the plaintiff, before the other side can bring them to the jury's attention at all). For instance, if your client has contradicted herself during the course of the case, the last thing you want is for the jury to first learn this when she is being examined on the witness stand. In your opening statement you can give the jury a preview of the inconsistency and minimize its impact. For example, you can explain that the perceived discrepancy was the result of your client being nervous, confused, or misled, or explain that the differences are trivial (in spite of the fact that opposing counsel will try to overstate their significance), and that the most important aspects of the case favor your client.
Pretrial practice, including any dispositive motions or statements of the case, will help to clearly identify your case's weaknesses. If you address these directly in your opening statement, you can often diffuse them and minimize the harm to your case.
3) Preemptively Attack the Opposition
In conjunction with diffusing weaknesses, you should also preemptively attack the opposition in your opening statement. This gives you the opportunity to undercut the opposition's known or anticipated positions when you address the jury directly. It is also the part of an opening statement that can tread closest to the forbidden territory of argument, and therefore must be conducted with care. Again, opposing counsel’s dispositive motions and statements of the case provide great insight into their positions that you can preemptively attack in your opening statement.
An example is a strong expert witness that the opposition plans to have testify at trial. Of course, you will have your own expert to testify to the contrary, but the two sides' experts may use different methods, and will certainly arrive at different conclusions. If you expect that the "battle of the experts" will be crucial to the determination of the case, you will want to spend some time in your opening statement giving the jury a preview, including reasons why your expert and/or her methods are more reliable than those the opposing party will put forward.
Another issue that trial counsel may want to preemptively attack in the opening statement is an anticipated statute of limitations defense. For instance, in a legal malpractice case, a plaintiff typically has at most four years from the date of his attorney's wrongful act or omission to bring a lawsuit. However, this period is tolled if the attorney willfully concealed the facts constituting the wrongful act or omission. In the plaintiff's opening statement, counsel will want to describe to the jury the defendant's concealment of these facts, preemptively attacking an anticipated defense, and settling the issue, or at least planting the seed, in the minds of the jury.
As counsel's first opportunity to address the jury directly for a sustained period and, generally, without interruption, the opening statement presents a chance to win your case when the trial has barely begun. While argument is prohibited, a strategically-crafted opening statement can be extremely persuasive. Employing the techniques described above can help you make the most of your opening statement, and give your client a possibly insurmountable head start at trial.
Categories: commercial litigation, employment litigation, trial practice, litigation