Opening Statement
First two minutes.
You have to immediately capture the jury’s attention. At this point, you need to provide your theme.
Tell a story.
You are not allowed to argue, but you don’t need to.
After the theme and the story.
Tell the jury what you expect the evidence to show.
Your witnesses are not going to come in chronological order, so set forth the identity of each witness and pro and con what the witnesses are going to testify to.
Don’t leave out adverse facts.
Point out the conflicts that the evidence will present. State who is going to testify on each side of the conflicting evidence. For example, Sam Smith will testify that the plaintiff was going 25 mph in a 25 mph zone. He was positioned immediately behind the plaintiff for 5 minutes. The defendant is going to call Sally Jones to testify that the plaintiff was traveling in her opinion at 35 mph. She was 76 feet away and will testify she saw the plaintiff for 5 seconds in order to reach that conclusion.
If you set forth the facts, you don’t need to argue who to believe.
Set forth factually the convincing components of the testimony that is favorable, the factual components of the adverse testimony that is unfavorable.
How do you deal with your expert’s anticipated testimony?
Providing the facts relating to expert testimony is no different than lay person testimony.
Understand the area of expertise so that you can explain what the expert is ultimately going to explain whether it be on damages or liability.
I lay out all the expert testimony including the basis for it. Don’t miss this chance to teach the jury what the jury needs to know in order for you to win.
Use anatomy charts.
If you want a good verdict and you are a plaintiff, you have to earn it. Set forth all of the components of your special damages, past and future, wage loss, past and future.
Don’t be afraid to explain the most intricate details of your damages or your injury.
Use demonstrative evidence and get it cleared before you use it.
Photos of the scene.
Diagrams of the scene.
I like summary exhibits. I use then in opening if I know I have the foundation.
Summary list of medical specials, past and future, including wage loss, past and future.
Don’t pretend Robinson v. Bates doesn’t exist.
Use only those documents that you are absolutely confident will be admitted into evidence because the foundation has been met in discovery.
Credibility in opening and in the trial.
Own what you say.
You don’t have any credibility until and unless you earn it.
Don’t over sell anything.
Limit yourself to the facts.
Take away your opponents thunder by advising the jury what their best facts and evidence will be and a factual comparison contrast as set forth above.
My theme is always to be the truth teller, to tell the jury the good, the bad and the ugly.
One mistake and you’re out. There are no three strikes. You get one. If you lose your credibility, you’re done.
Unfortunately, as a lawyer, we are starting in a deep hole and only earning credibility can get us out of that hole.
Our job is to teach. If we don’t teach and they don’t understand, we can’t win.
I explain in the opening how I know what the evidence will show explaining the admissions, documents, interrogatories or depositions that occurred only as it relates to how I know what I expect the evidence to show.
Conclusion
Opening statements play a key role in communicating the framework for how jurors should view the evidence. Persuasive opening statements contain many common features. By paying attention to these features and using the recommendations contained in this article, attorneys can consistently present persuasive opening statements. While opening statements do not win cases by themselves, they prime the pump for success.
