Opening Statements: Effective Advocacy without Crossing the Line
Opening Statements: Effective Advocacy Without Crossing the Line
Sanford M. Brook , Arbiter
Arax Corn, Staff Counsel
I. THE IMPORTANCE OF OPENING STATEMENTS
Ask any trial lawyer what his or her favorite part of a trial is—chances are few, if any, will tell you that it is opening statement. When compared to closing argument, the perception is that opening statements are not very exciting, little preparation is needed—you could deliver it in your sleep because there is no real skill required, and opening statements just don’t generate the same adrenalin rush as getting up to deliver a closing argument. If that is what you are thinking right now, keep reading—do not make the mistake of underestimating the importance of opening statement. In fact, opening statement is arguably the most critical part of any trial. Remember the adage, “You never get a second chance to make a first impression?” That certainly applies with respect to opening statements. Commentary on opening statement often claims that jury research tells us as many as 80 percent of jurors make up their minds immediately after hearing opening statements. Finding the published research to support this purported statistic is an impossible task, but those who do research and jury consulting absolutely support the proposition that delivering a powerful and credible opening statement is critically important, and that many jurors do begin to form strong opinions very early on in a trial. [i]
One jury consultant has reported that “[a] recent study of mock juror decision-making at Cornell University showed that 85% of prospective jurors showed ‘pre-decisional bias’ in their decision-making. That is, their interpretations of incoming evidence were biased to support the party they favored early on in the case. Further, the more confident a juror was in their early judgment of which party should prevail, the more bias they showed in interpreting subsequent evidence. General pro-plaintiff or pro-defense attitudes were also predictive of initial verdict leanings, despite the fact that they were instructed not to let their prior beliefs color their interpretations of evidence.” The author went on to write that “[e]mpirical evidence supports this finding; in our experience conducting mock trials over the past 26 months … we have found that only 12.4% of jurors change their verdicts between the conclusion of opening statements and the end of trial.”[ii]
Understanding that opening statement is indeed very important, and deserves at least the same amount of preparation as closing argument, if not more, our attention turns to what it is that we should say to the jury in opening statement. You have probably heard more than one person say that you must “tell a story” to the jurors in opening statement. This is good advice, but is not always as simple as it may sound. Jurors are human. Like us, they don’t like gaps or holes in stories; it makes them puzzle over the missing pieces to try to make sense of what they are hearing. It is simple human nature to want to fill in those gaps and if necessary supply from their own preconceived notions the missing parts of a story so that it makes sense and is believable. Better that you tell a story in an opening statement free of gaps, that lays out the case in a way that explains to the jury why you should win and your adversary should lose.
It also is important to tell your story in an effective manner without engaging in objectionable argument. Finding the right balance for our opening statement is difficult. We are not allowed to argue, but we must persuade. We cannot characterize, but we must present the case in the light most favorable to our client. We cannot draw inferences, yet our goal is that when we sit down the jurors conclude that our side of the case is the right side. We want the jury to understand our case in the simplest terms. Our objective is to sharpen the jurors’ imagination and have them say when we sit down, “I can’t wait to hear your case, and I want to be for you.” Through preparation, thought, and good advocacy skills, we can achieve the goal of presenting an effective and compelling opening statement.
II. ETHICAL CONSIDERATIONS IN OPENING STATEMENTS
Opening statement is not specifically mentioned in the Model Rules of Professional Conduct, but there are a number of provisions that we must bear in mind when preparing our opening statements:
Rule 3.3: A lawyer “shall not knowingly make a false statement of material fact.”
Rule 3.4(e)(1): A lawyer may not “allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.” The lawyer must have an objectively reasonable belief: it is not sufficient that the lawyer hopes the evidence will be admitted, or believes there is a slim chance it will be admitted.
Rule 3.4(e)(2): A lawyer shall not “assert personal knowledge of facts in issue.”
Rule 3.4(e)(3): A lawyer may not “state a personal opinion as to the justness of the cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of the accused.”
Rule 3.4 also prohibits a lawyer from “knowingly disobey[ing] an obligation under the rules of a tribunal.” Although it may sound rather vague, this provision is generally understood to apply where a lawyer intentionally includes in opening statement anything the lawyer knows would violate legal guidelines.[iii] Consequently, a lawyer should not:
· engage in argument
· appeal to sympathy or prejudice
· discuss the law
· exaggerate the evidence or statements of facts and issues outside the scope of the pleadings
· engage in attacks or negative comments on his/her opponent’s case
If reversible error or grounds for a mistrial occurs during opening statement, it is much more likely to occur in criminal rather than civil trials. Important constitutional rights are at stake and must be protected. Prosecutors must be mindful of lines that cannot be crossed during opening statement. In the civil arena, however, it is far more common to find that challenges to statements or conduct during opening statement are “excused” under the harmless error doctrine. If the error does not undermine the fairness or validity of the trial, a new trial is not required.
Although we all know that argument is not permitted during opening statement, it also is common knowledge that many courts allow trial counsel some latitude during opening statements. If you were to ask a group of trial lawyers how much argument is too much during opening statement, a lively discussion likely would ensue, and you will find a range of viewpoints.[iv] However, there is a line that cannot be crossed without consequences. As former United States Chief Justice Burger explained, “An opening statement has a narrow purpose and scope. It 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. To make statements which will not or cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct. Moreover, it is fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching a verdict.”[v] For an example of a criminal case in which defense counsel was held in contempt based on conduct he engaged in during his opening statement, read Hawk v. Superior Court, 116 Cal. Rptr. 713 (1974).
The highly-publicized and controversial trial of Casey Marie Anthony[vi] presents a law school exam-like situation in which the defense attorney’s comments during opening statement have been called into question and widely criticized as ethical violations.[vii] During his opening statement, Anthony’s attorney told the jury that Anthony knew that her daughter Caylee never went missing but instead had drowned in the family swimming pool. He also said that Anthony’s father knew of the drowning and had sexually abused Anthony. However, during the trial itself, this evidence never materialized. Anthony herself did not testify, and her attorney was left to try to support his claims through cross examination of her family members. Unanswered questions, which likely never will be answered, are whether at the time he made those remarks in opening statement Anthony’s attorney knew that she would not take the stand, and whether he had admissible evidence to support his statements.
Setting aside for a moment the consequences of engaging in professional misconduct, there is another good reason to avoid argument during opening statement—it is not the most effective means of establishing credibility and developing rapport with the jurors. Rather, introducing your side of the case to the jury through effective storytelling that relies on the facts to be presented enhances your credibility and likeability.
III. THE GOALS OF OPENING STATEMENT
What is it then that we should focus on accomplishing through our opening statement? In preparing an opening statement, there are a number of key goals to keep in mind. We expect to:
· introduce our side of the case;
· create favorable first impressions of counsel, clients, and our cause of action;
· build rapport with the jury;
· define important terms to be used during trial;
· present an overview of the case upon which we will build with evidence we will present;
· help the jury to understand and focus on the key facts of our case; and
· persuade the jury and begin to condition them to find in favor of our client.
Two simple tests help determine whether something should be said in an opening statement. First, apply the three-question test. The three-question test requires us to ask ourselves the following when considering what to say in opening statement:
1. Will what we say be remembered?
2. Will what we say assist in understanding the factual issues?
3. Will what we say assist in setting the scene?
If a particular point will not be remembered, or will not assist in understanding the factual issues, or will not assist in setting the scene, then we should not clutter up our opening statement with this point. The second test we can use is the fact test. The fact test determines whether a piece of data meets the requirement to be classified as “fact.” If a witness can say something on the witness stand, or if a document or some other form of evidence can provide the information, then it is fact and we can use it in opening statement. Material that does not pass the fact test should not be included in opening statement.
Finally, it should be noted that it is permissible for a defendant in either a civil or criminal case to reserve the opening statement until the beginning of the defendant’s case-in-chief. As a general rule, however, this is not an advisable tactic because jurors develop a factual focus and begin to form impressions upon hearing the opening statements. With this in mind, it is dangerous to defer opening statement. Nonetheless, some prominent trial lawyers suggest that reserving the opening statement may be advisable if: (1) the trial will be brief; or, (2) in a criminal case, if it is not certain whether the defendant will testify. Unless we, in defending, are able to determine that reserving the opening statement will not prejudice our client with respect to how the jury is initially viewing the case, the opening statement should not be reserved. Even the most experienced trial lawyers find it impossible to predict what each juror’s initial view might be. Thus, it is rare when circumstances support reserving opening statement.
IV. THE DO’S AND DON’TS OF OPENING STATEMENTS
At the outset, it is important to note that the trial court has broad discretion in dealing with the scope and content of opening statements.[viii] What follows is a list of things that we should not do during opening statement, as well as a list of things that we should do during opening statement, along with a brief rationale for each. By following these guidelines, we can deliver an opening statement that allows us to be effective and persuasive advocates at a point in the trial when it is perhaps most important to the success of our case.
A. THE DON'TS
1. Don’t argue. Argument includes urging, comparing, and giving opinions, characterizations, and inferences. These are things we are permitted to do only in closing argument. Our tone of voice, if loud, may also lead to an objection during an opening statement, particularly when the tone of our voice sounds like argument. Even though it is not the tone, but rather the content, that is objectionable, we nevertheless must be careful of the tone of our voice in an opening statement.
2. Don’t use a table of characters. When we use this device, our opening statement takes on the characteristics of a Russian novel and becomes difficult for listeners to follow. The jury does not yet know our witnesses, so telling them who is going to testify is not helpful. If a particular witness does not help in telling our story and setting the scene, then that witness should not be mentioned in opening statement. This admonition also means we should avoid a witness-by-witness synopsis. As an example:
Howard Marshall will take the stand and testify that Harriet Cooperman committed legal malpractice. David Engles will then tell you how he was treated by Ms. Cooperman. Laura Clark will also testify about her relationship with Harriet Cooperman.
Most of all, remember that at the time of the opening statement, we may have a list of five, six, or even 15 witnesses we want to call during our case-in-chief. But during the course of the trial, we may decide things are going in such a way that we may not want to call a particular witness or witnesses. If that turns out to be the case, we have another reason not to mention these people during the opening statement. Certain witnesses may be necessary to identify by name during opening statement; however, these witnesses must help in setting the scene to merit this attention.
3. Don’t give a course in trial procedure. This technique is often referred to as the “road map approach.” Examples of this technique include such phrases as: “An opening statement is only a preview of what the evidence will show,” or, “The opening statement is a road map of where the case will go.” This technique is neither necessary nor effective. Time is too precious during an opening statement to explain or discuss direct and cross examinations, instructions, and closing arguments. We tragically misuse a key opportunity to capture the attention of the jury when we include in opening statement things that will not be remembered, do not assist in understanding the factual issues, and do not assist in setting the scene.
4. Don’t give a disclaimer of credibility. Some lawyers still say, “Members of the jury, an opening statement is not evidence; it is only what we believe the evidence will show. And so you shouldn’t treat it as evidence.” Such comments are likely to result in the jurors attaching less importance to the rest of what we say in the opening statement. Indeed, statements like this may cause some jurors to not even listen to the rest of our opening statement.[ix]
5. Don’t overuse the phrase “The evidence will show.” The tendency to use this phrase in opening statements most likely occurs because we do not want the other side to object and we think that this phrase acts as a shield against objections. That is not the case, and it is neither necessary nor desirable to use this phrase. In telling our story and setting the scene, if we have used the “fact test” (if a witness can say it or if a document or other piece of evidence will prove it, it is fact), then what we say in opening statement is permissible and we do not need to preface these factual statements with “the evidence will show.” It is analogous to announcing during cross examination, “I am now going to impeach the witness.”
6. Don’t say anything you are not certain will be admitted into evidence. Failure to adhere to this “rule” will haunt us in closing argument. Every good lawyer listens to what the other side says during opening statement. If the other side says something that does not come out in evidence, then good lawyers know exactly what to do. During closing argument, counsel reminds the jury of what his or her adversary said during opening statement: “She told us in her opening statement that she was going to prove this, this, and this, but you did not hear any testimony or see any documents that proved these points.”
Here is how one court recently discussed improper opening statement by the City’s attorney in an action against City of Chicago police officers for alleged misconduct in a rape prosecution.
The court was “most troubled by the City’s attorney’s numerous references to evidence that [the attorney had been] warned was not guaranteed would be admitted.” The City’s attorney “threw caution to the wind” and throughout opening statement referred extensively to such evidence, portions of which was not ultimately admitted. In all, nearly 20 objections were sustained during the “entirely inappropriate” opening statement. The trial court “admonished the City’s attorney that he needed to refrain from improper argument and stick to the facts of the case,” and “warned the City’s attorney that he needed to be careful with what he was promising the jury, and cautioned that it would be problematic if there was not evidence to support what he was saying.”[x]
It is essential that we refrain from saying anything we are not certain will come out in evidence during the trial. Also, avoid using terms that reflect uncertainty, such as: “We think,” “We hope to prove,” “We believe,” “It is our expectation,” or “If you hear this, then you may hear that.” It is far better to err on the side of understating rather than over promising the evidence the jurors will hear during the trial. Your credibility will be enhanced, rather than undercut, if you follow this practice.
7. Don’t engage in prohibited conduct. At first blush we are likely saying to ourselves, “Of course I would not do anything in opening statement that is prohibited.” But, do we know what is prohibited conduct? Even though some of these things should be obvious, let’s examine a few key things that should never occur during an opening statement:
· Never state our personal belief about our client or our client’s case. Likewise, do not attempt to put the jurors in our client’s shoes.[xi] Such conduct is not only prohibited, it also is unethical. Several examples follow:
“Members of the jury, this could have happened to any one of us.”
“If you were in my client’s position, you would have done the same thing.”
“If you were in my client’s shoes, you would have felt the excruciating pain.”
· It may be overstating the obvious, but we must never touch upon the subject of a motion in limine if the court has either granted the motion or reserved ruling on it. [xii] In the same vein, never refer to any evidence that has, by pretrial proceedings, been excluded or suppressed.
· Never make statements that cannot be supported by proof.
8. Don’t make admissions that bind your client. A clear and unambiguous admission of fact made by a lawyer during opening statement is binding upon the lawyer’s client. The United States Supreme Court long ago upheld a trial court’s granting of a directed verdict after plaintiff’s counsel made binding admissions during opening statement.[xiii]
Obviously, a lawyer would not intentionally make an admission that would bind his or her client or foreclose the presentation of evidence on a particular issue. Usually, such admissions made during opening statements are inadvertent.
Generally, there are two types of admissions: judicial admissions and evidentiary admissions. [xiv] Even if a lawyer mistakenly makes a judicial or evidentiary admission, the admission must be “clear and unambiguous.” [xv]
A judicial admission is a statement that concedes any element of a claim or defense. The admission is conclusive. Thus, there is no need for any further evidence on the particular element judicially admitted.
The following example demonstrates this concept:
In a criminal case, defendant appealed from denial of a motion to suppress information obtained during a traffic stop that defendant claimed violated his Fourth Amendment rights. Defendant had argued in support of the suppression motion that the officer had no reasonable suspicion to stop his car. Then, during opening statement, counsel for defendant set forth as factual background that defendant was stopped because his car had a cracked windshield, a state-law violation. The appellate court found this admission that defendant was driving his car in violation of state law provided reasonable suspicion to stop defendant, and affirmed denial of the motion.[xvi]
In contrast, an evidentiary admission allows the jury to determine what weight to give the admission. Another example aptly demonstrates this concept. A criminal case was tried three times. During the opening statement of the third trial, the defendant’s lawyer made statements inconsistent with those he made during his opening statement in the second trial. The prosecution then moved to introduce these inconsistent admissions as evidence in the third trial. The court found the statements by counsel in the second trial were indeed evidentiary admissions. The admissions were allowed because the lawyer made the statements: (1) as an agent of his client, and, (2) had “manifested his adoption or belief in the truth of the statements.”[xvii] The court allowed the evidentiary admissions, thus permitting the jury to weigh both sets of statements.
Thus, because an admission by a lawyer during opening statement can bind one’s client, it is not only essential to never make such admissions, but it is just as important to listen for any judicial or evidentiary admission made by opposing counsel, and to be prepared to take advantage of it. We should include as part of our ammunition in our trial notebook citations to cases that discuss the use of evidentiary and judicial admissions. Having these citations at our fingertips will be important in making our case for the trial court if we are fortunate enough to have opposing counsel slip up in this fashion.
9. Don’t appeal to passion or prejudice. Here is an example of conduct to avoid in our opening statements:
Charlie Shrackle was involved in a mere accident, just an accident. It could happen to anybody. Simply an accident. Sure we feel sympathy for Jeffrey Potter, because his wife died, but she died because of an accident, a mere accident.
Communications experts say that watchwords in effective communication are “hear,” “believe,” and “remember.” Our listeners must hear what we say, believe what we say, and remember what we say. When we overstate our case, the jury may have difficulty believing us. We are not street hawkers or carnival hucksters. We are lawyers, and we have a concern for imparting the truth by using persuasive techniques and good communication skills.
10. Don’t play off the other side’s opening. For the plaintiff, this means that we should not speculate as to what the defendant is going to say, and we should not comment upon it. Theoretically, this is not permissible. For the defendant, this means that we should not comment on what the plaintiff’ just said in opening statement. This may get close to argument and may lead to comparisons, characterizations, or inferences, all of which are impermissible in opening statement.
In addition, when we play off the other side’s opening, the jurors may perceive this as actually giving credibility to what the other side has just said. We do not want to undermine our effectiveness as advocates in this way.
11. Don’t discuss the law. This “Don’t” is perhaps best illustrated by the following example:
You have probably wondered why Sue Smith is the defendant when her friend, Jenny Carnes, was the driver of the car that collided with my client. Well, there is a law in this state that says, “it shall be unlawful for any person having any vehicle in his custody to cause or knowingly permit any person to drive such a motor vehicle upon the public highways unless such person shall have first obtained a license or permit.
Even trained lawyers and judges can have trouble with this language, and the law is subject to interpretation. Law, which is often subject to interpretation, has no business being discussed in an opening statement. In fact, it is impermissible. Additionally, if we were to discuss the law that we thought would apply in the case, and later if the judge ruled that we could not instruct on that particular law, we would be in terrible shape. Therefore, the law and interpretation have no place in opening statements.
B. THE DO’S
1. Give the jury a theme. The theme may start in voir dire examination, but we must address it during opening statement. The theme weaves throughout the case, and is tied together in closing argument. The theme is a group of words, not necessarily a sentence, that captures the jurors’ attention while communicating what the case is about.
2. Tell your story. This means that you should state the facts in a story-like fashion, since it has proved to be the best way to keep the jury’s attention. During the opening statement the jury begins to form the factual focus and visual image of what took place. Again, return to the keys to good communication – the jury must “hear,” “believe,” and “remember” what we say. This will happen if the opening statement is presented in a story-like fashion.
In telling our story, take the jury to the scene, and make them “see the facts.” The following is an effective example:
Let’s go back to that day in early June. We are standing at the intersection of Wayne and Michigan Streets. We watch as the traffic signal turns green for the northbound traffic on Michigan Street. We turn to see a pick-up truck traveling very fast in a westbound direction on Wayne Street. Immediately we think “the pick-up truck is going to run the red light.” We glance to Michigan Street and see a school bus entering the intersection, going north on Michigan. We stand frozen in time as the truck runs the red light and crashes into the side of the school bus.
When using storytelling, be sure not to “back in and out” of the scene. Keep the jurors at the scene throughout as much of the opening statement as possible. Using present tense is also effective in keeping the scene alive for the jurors.
If we are dealing with a weakness in our opening statement, the use of positive terms in a story-like fashion can achieve a desired result. The following is an example:
James Taylor gave a statement the day after the accident. He will tell you that he gave the statement at a time when he was rushed and nervous. This statement, because of the nervousness, was misunderstood. James Taylor made an error in the statement and he will right that error when he takes the witness stand.
3. Create some sense of injustice. Following a dynamic opening statement, the jurors should think and feel that they are on our side. Therefore, we should attempt to create a sense of injustice. We must use our imagination in developing and presenting our opening statement. Feel free to throw off the constraints of conventional thinking and take unique approaches to presentation.
4. Personalize your client. Make sure during opening statement that the jury gets to know our client. Look at all the situations that are positive for our client. Particularly, family life, education, work background, and even hard-luck details. Introduce the jury to our client in such a manner that they will like our client, regardless of the issues of the case. To sell our theory of the case and of the law upon which we are relying, we must first sell our client. This is especially important when our client is a corporation rather than an individual. Don’t be put off by the fact that your client is a multi-billion dollar corporation, the Goliath of all Goliaths. Bring it down to the local level to the extent possible and permissible, perhaps through reference to an annual event in the community that the corporation sponsors, the number of people that the client employs in the local community, and so on.
5. Be simple. Use words that are understandable. We want to avoid using words such as “subsequent,” “prior,” “observation,” “proceed,” “vehicle,” or “surveillance.” People on the street do not talk this way and we should not speak in such a manner when giving an opening statement. Imagine the expressions of jurors if they heard the following during the opening of a highway construction case:
The clear catastrophic consequences opined by a plethora of highway structural engineers is that the pitch of the incline effectuated an ingress and egress design that is indelibly problematic.
6. Give only those details that lend authenticity to your opening statement. For example, do we care for purposes of the opening statement that our client lives at a particular address, in a particular county, or that the tires on his truck had less than 5,000 miles on them at the time of the accident? These details are unnecessary in an opening statement. Use the communication technique of teasers: provide enough information to “tease” the jury and create interest in how our client’s story will unfold at trial. Here is an example:
A fingerprint expert from the FBI will tell you she found fingerprints on the knife. She will also tell you whose fingerprints are on the knife.
7. Start strong; end strong. The concepts of primacy and recency are important to opening statements: primacy – that which is heard first is likely to be believed; recency – that which is heard last is easiest to remember. Therefore, the first words out of our mouth set the tone for the opening statement. It is unnecessary to reintroduce ourselves, and no need exists for the jury to know who we represent. And, do not thank the jury before we start. After all, they have not done anything yet. The first words spoken by a prosecutor in a murder case might be:
“It was the same car, the same man.” Theresa Carletti’s dying words. Words that point to John Burns as being the same man. The man who is responsible for her murder.
If the final words are most easily remembered, make them count. In our murder case, we might end our opening statement as follows:
And so you will hear a story about John Burns, that “same man” Theresa Carletti spoke about, that “same man” who we will ask you to convict for the murder of Theresa Carletti.
8. Use action words. Action phrases bring our case to life through descriptive words such as: “He saw the gun; he heard the shot; he spun and glanced toward Mary as she fell to the ground.” Action words are fact words, not conclusive words. Words with impact are “smashed” instead of “hit,” “shrieked” instead of “yelled,” “huge” instead of “large,” “fear” instead of “scared,” or “anger” instead of “mad.”
9. Tell the jury what you want. During an opening statement in a civil case this can be extremely difficult. It is hard during opening statement to face the jurors, look them in the eye, and say, “My client wants a million dollars as a result of what happened.” We must use our creativity and let the jury know what we want without sounding harsh or greedy. Here is an example of how we may want to address damages:
Members of the jury, we will be asking for a lot of money for the pain Nancy Sweet has suffered and continues to suffer as a result of losing her leg. The story you will hear will show nearly $8 million worth of loss because of the failure of Dr. Robbins to properly diagnose her condition.
If we are the plaintiff’s lawyer in a damage case and do not know what the proof of our total damages will show, then we must at a minimum give the jury an idea of the amount of money we are seeking. Help the jurors become accustomed to hearing big figure monetary amounts. If our damages are between one and one-half and two million dollars, rather than saying, “Our damages will exceed one and one-half million dollars,” we should say, “The plaintiff’s damages will total nearly two million dollars.” Use the higher figure so the jury has no surprises at the end of the case.
In a criminal case, “what we want” means asking the jury to convict, if we are the prosecutor, or asking them to find the defendant not guilty, if we are the defense attorney.
10. Be cognizant of the burden of boredom. During the opening statement, make eye contact with the jurors. If the custom of the court in which we practice requires the use of a podium during opening statement, ask the judge prior to opening statement for permission to deliver part of our comments from the side of the podium, or perhaps from the front of the podium. Be sure to move along the entire length of the jury box during opening and pay attention to each of the jurors. If we believe they are bored and not listening, then the time has come to sit down.
Boredom often sets in during opening statements because our opening is too long or too detailed. To avoid juror boredom, we must always be cognizant of the length of our opening statement. Just because the judge tells us that we have an hour for opening statements does not mean we must use the entire hour. Use only enough time to tell our story, to set the scene, to get the point across, to convey a sense of injustice, and complete these tasks without boring the jury.
11. Make yourself credible. The first lesson in being credible is knowing our case. The second lesson is to show enthusiasm for our case and compassion toward our client. The third lesson brings together many of the concepts already discussed. Simply stated, communicate in such a way that the jurors will like us and our client.
Again, make eye contact with each juror, but avoid invading the jurors’ space – this means stay at least five feet from the front of the jury box during our opening statement. When possible, we should leave our notes, pens, and pencils on the table. Try not to have anything distracting in our hands. Make certain keys or loose change in our pockets do not distract the jurors. Keep the jurors’ attention focused on what we have to say.
In addition, we should never put both hands in our pockets at the same time; and avoid the defensive posture of folding arms across our chest. Our hands play a major role in improving credibility. Use them so that our palms are up; gesture affirmatively with them.
12. Use exhibits during opening statement. People retain a much larger percentage of what they see than what they hear. Communication experts tell us that 70 percent of listening is done with our eyes. As good lawyers and good courtroom communicators, we want to use potential exhibits during opening statement. [xviii]
If a piece of evidence is going to help set the scene, use it in opening statement. There are five general requirements with respect to the use of exhibits in opening statements:
1. The exhibit must be relevant.
2. The exhibit must assist in setting the scene.
3. We must have a good faith expectation the exhibit will be admitted.
4. The exhibit must not be prejudicial or inflammatory.
5. We must have a good faith basis authentication will occur.
Although no requirement exists (unless local rules so require), courtesy suggests letting the judge and opposing counsel know we are planning to use exhibits in our opening statement.
V. OBJECTIONS DURING OPENING STATEMENTS
Finally, a brief examination of the use of objections during opening statements is appropriate. As a general proposition, use objections sparingly and only object to the other side’s opening or to portions of that opening when good reason so demands. Object when something improper is said and that something hurts our client. If the other side does something improper during opening statement, but it does not hurt our client, do not object. It makes no sense to simply bore the jury with our knowledge of the rules in pointing out the impropriety of opposing counsel’s statements.
We should try and avoid calling attention to ourselves. Likewise, avoid conduct that could lead the jury to believe we are attempting to keep something from being heard during opening statement. Do not act as if we are somehow attempting a personal attack upon opposing counsel. In other words, if the statements do not hurt our cause, do not object.
The most frequent reason for an objection during the opening occurs when an argument goes on and on. A second principle reason for objection takes place when conclusions of law are being drawn. A third reason to object results with the violation of a court order. For instance, if in a motion in limine the court forbids the use of certain items or the addressing of certain topics, and if opposing counsel defies that motion and makes reference to the topic, most certainly, we want to object. Finally, object to any attempt by our opposition to have the jury “stand in the shoes” of her client. The “Don’ts” of opening statements covered this objectionable technique and such appeals must be kept from the ears of the jury.
By keeping in mind the “Do’s” and “Don’ts” listed above, you can be an effective advocate for your client from the very beginning of the trial. You can craft an opening statement that is credible, and you can begin to establish yourself with the jurors as someone whom they can trust and respect. Certainly, opening statement is but one piece of the trial, and it is important to follow through by providing the jury with witnesses and evidence to back up the statements you made to them in your opening statement. But by thoughtfully charting the course in your opening statement and helping the jury to understand what it is that they need to know, and why they should want to rule in favor of your client, you can and will be a vigorous and effective advocate for your client.
[i] “Many experienced trial lawyers contend, and the available empirical jury studies tend to confirm, that an opening statement is frequently the most critical stage in the trial of a lawsuit, as here the jury forms its first and often lasting impression of the case.” 75 Am. Jur. 2d Trial § 429 (1964).
[iii] See Richard Underwood & William Fortune, Trial Ethics 309-16 (1988).
[iv] Consider the statement of two distinguished commentators on ethics, who assert that “it is not unethical to [argue] unless argument violates a standing order of the tribunal. Because it is rarely clear when a statement of the facts becomes argument, attorneys may legitimately press onward until halted by the court.” Underwood & Fortune, supra note 2, at 315. However, there is also substantial support for the proposition that if you intentionally argue to see if you can get away with it, you are acting unethically whether or not your opponent objects.
[v] United States v. Dinitz, 424 U.S. 600, 612 (1976) (Berger, J., concurring).
[vi] The case involved the prosecution in 2011 of a mother for the death of her two-year-old girl in Orlando, Florida.
[vii] As an example of one of numerous books that have been written about various aspects of the Casey Anthony case, see William Morrow, Imperfect Justice: Prosecuting Casey Anthony (2011).
[viii] See United States v. Anthony, 345 Fed. Appx. 459, 464 (11th Cir. 2009) (citing United States v. Freeman, 514 F.2d 1184, 1192 (10th Cir. 1975)). “An opening statement gives counsel the opportunity to state what evidence will be presented in order to make it easier for the jurors to understand what is to follow, and is not an occasion for argument…. the court can exclude irrelevant facts and stop argument if it occurs.” Id. (internal citations omitted).
[ix] Further, although they are not evidence, comments made during opening statements nonetheless can “open the door” to admission of evidence on a subject area that would otherwise be off-limits. See United States v. Moore, 98 F.3d 347, 350 (8th Cir. 1996) (where defense counsel asserted in opening statement that defendant was simply “the wrong man at the wrong time at the wrong place,” this put defendant’s intent at issue, opening the door to admission of relevant Rule 404(b) evidence).
[x] See Walden v. City of Chicago, 846 F. Supp. 2d 963, 977-78 (N.D. Ill. 2012) (nonetheless holding that, because the trial court sustained plaintiff’s objections, admonished the City’s attorney, and instructed the jury that opening statements are not evidence, the improper opening statement was not so prejudicial as to warrant a new trial). Cf. Arizona v. Washington, 434 U.S. 497, 512-13 (U.S. 1978) (“An improper opening statement unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal,” creating a risk of bias).
[xi] United States v. Taylor, 514 F.3d 1092, 1095 (10th Cir. 2008).
[xii] See, e.g., LaPlace-Bayard v. Batlle, 295 F.3d 157, 164 (1st Cir. 2002) (“At the time that plaintiffs gave their opening statement, they knew that the court had not yet ruled on [defendant’s] motion to exclude [medical expert’s] testimony. Well aware of that pending in limine motion, plaintiffs proceeded at their peril in promising the jury testimony from more than one expert. Having made that choice, plaintiffs cannot expect … to be relieved of the consequences of their own judgment call.”)
[xiii] Oscanyan v. Winchester Repeating Arms Co., 103 U.S. 261, 263 (1881).
[xiv] See Keller v. United States, 58 F.3d 1194, n.8 (7th Cir. 1995).
[xv] See, e.g., United States v. Alvarez-Becerra, 33 Fed. Appx. 403, 406 (10th Cir. 2002). Compare with People v. Bergerud, 223 P.3d 686, 700 (Colo. 2010) (defense counsel’s opening statement focusing on “toxicology and mental impairment” defense did not rise to level of a judicial admission conceding defendant’s guilt on any element of the charged crimes); and Mills v. Redington, 736 S.W.2d 522, 525 (Mo. App. 1987) (where counsel for doctor in malpractice action stated that doctor had recommended hospitalization, statement did not concede liability for plaintiff’s injuries – nor was it a judicial admission on the appropriate standard of care).
[xvi] Alvarez-Becerra, 33 Fed. Appx. at 406.
[xvii] U.S. v. McKeon, 738 F.2d 26, 29 (2d Cir. 1984).
[xviii] See People v. Harmon, 2011 Colo. App. LEXIS 1635 (Oct. 13, 2011) reh. denied 2011 Colo. App. LEXIS 1868 (Nov. 10, 2011) (as a matter of first impression, trial court did not abuse its discretion in permitting prosecutor to display photograph of victim during opening statements); see also Four-County Elec. Power Ass’n v. Clardy, 73 So. 2d 144, 151 (Miss. 1954); Coats v. State, 141 S.W. 197, 201 (Ark. 1911).