A very thorough guide to the elements and structure of your opening statement2019 January
Most juror consultants have found from their research in interviewing jurors after trial, that about 80-90 percent of jurors make up their minds about how they are going to vote at the conclusion of opening statements. Although jurors will not often admit this (because they were told by the defense and the judge not to make up their minds until after they have deliberated) jurors will regularly tell that they were leaning in a particular direction by the end of openings; and the research shows that almost always, their leaning predicts their vote. That is because once jurors lean towards siding with a particular party, they will see the rest of the trial through a lens that favors that party and reinforces their original inclination.
Therefore, the plaintiff’s opening statement is absolutely critical. It sets the tone for the entire trial. It must be persuasive and compelling, and fashioned in a structure that frames the evidence in a manner in which the jury will be most likely to lean toward the plaintiff’s contentions. Furthermore, because there is no rebuttal, the opening statement must also preemptively refute what is expected to be covered by the defense in its opening. The goal is to have the opening statement secure a very comfortable lead for the plaintiff and create the momentum needed to win the day and achieve a plaintiff’s verdict.
Trial themes are effective tools of persuasion, particularly as they are used in opening statements, because they give context for the evidence that will be presented throughout the trial. Trial themes should not be first contemplated or chosen when preparing for trial, but rather before discovery commences. The theme needs to be supported by the evidence, and the selection of a theme at the outset of the case enables the attorney to craft written discovery and deposition outlines with the goal in mind of developing the evidence that is needed not only to support plaintiff’s contentions, but the trial theme as well. As such, the plaintiff’s attorney should be thinking at the very outset of discovery about what they would like to tell the jury in the opening statement in support of the trial theme; and like a warrior acquires weapons needed for battle, the plaintiff’s attorney must obtain discovery responses and deposition testimony which will arm them for trial and a persuasive opening statement.
Two themes that can be used in almost any case are 1) the defendant violated a rule, or failed to meet a duty, that was created to protect the public from serious harm; and 2) the defendant has refused to accept responsibility for the harm it caused to the plaintiff as a result of its rule violation. Of course, other themes can suit a case, but this article focuses on these particular themes because of their universal applicability.
The defendant violated a safety rule or duty
A safety rule violation theme can be very effective as it can be crafted in such a way that leads jurors to think about how the safety rule protects them, and their loved ones, in many different aspects of their own lives. Of course, when jurors either consciously or subconsciously recognize that a violation of a safety rule can endanger them or their family, they are more likely to render a significant verdict to hold the rule violator accountable. Creating the specific safety rules to use in a particular case takes careful consideration.
Much has been written about how to develop safety rules as the theme of a case, as well as the presentation of the rules in opening statement and throughout the entirety of the trial. Recommended books which address these topics include: Rules of the Road, by Rick Friedman and Patrick Malone; Ball on Damages III, by David Ball; and Reptile, by David Ball and Don Keenan, amongst many others.
The authors of these books espouse the importance of early development of such rules so that the rules frame the entire case. They advocate that the rules should be: simple, clear and concise; immediately understood by lay people without need for explanation; devoid of legal terminology; and supported by evidence of both the existence of the rule and the frequency and severity of the harm that occurs when the rule is violated. Each rule should also: be stated in a manner such that defendants and their experts will have to admit the existence of the rule, or look foolish in denying it; be easy for the defendant to have followed in the subject case; apply to a wide range of actors; protect a wide range of people; and be a rule which, if violated, can cause significant harm. Proof of a defendant’s violation of rules that meet these criteria not only can establish negligence, or other culpable conduct, but can be used to frame the case and a compelling opening statement.
David Ball, in the aforementioned books, discusses a general blanket rule that can be used in most any case. The basic premise is that a defendant is never allowed to needlessly endanger people (or take unnecessary risks that can harm people). More specific subsets of this blanket rule can be tailored to the facts of your case and embrace the general blanket rule (e.g., “a driver is never allowed to take his eyes off the road, because if he does, he needlessly endangers people”; or, “the owner or manager of any property where the public is invited to come, whether it is a department store, apartment building, school or hotel, must always have enough light in its stairways so people can clearly see the stairs, because if it does not, it needlessly endangers people.”)
As earlier mentioned, such rules are more effective if they are created in such a manner that compel jurors to see how a violation of the rule may endanger them or their loved ones. A safety rule that would only serve to protect the plaintiff in the unique circumstances of the case is not likely to engage jurors as effectively as a safety rule that they feel also protects them. For instance, a rule such as: “A butcher store must always wash away any meat remnants on its floors, so that customers will not slip on them,” is not as effective as, “Any business open to the public, whether it be a supermarket, shopping mall, movie theater, hardware store or butcher shop, is required to inspect its floors and remove any substance that a customer might slip on.”
The plaintiff’s attorney should take care in the formation of the safety rules that will be used as a trial theme, and seek input from lay people and/or focus groups as to how the rules as stated may resonate with jurors.
The defendant refuses to accept responsibility
Another effective theme that can be used in conjunction with a safety rule violation theme is how the defendant has continuously refused to accept responsibility for its rule violation and the harm that it caused. Of course, a wrongdoer who fails to admit that it committed a wrongful act which caused a person harm and/or who refuses to make up for that harm, can be perceived by jurors as a danger to the community, including the jurors themselves and those that are important to them. Again, jurors are more likely to render significant verdicts against defendants whom they perceive as a threat not only to the plaintiff, but to themselves and those they wish to protect.
To that end, a plaintiff’s case, and opening statement, should highlight every manner in which the defendant has refused to be accountable, in addition to the obvious point – that there would be no trial had the defendant taken proper responsibility. Each instance that the defendant took actions to protect itself, but not to help the plaintiff should be used to support this theme (e.g., a negligent driver of a car who calls his insurance company from the scene, but does not ask the plaintiff if they are injured or need assistance; a store manager who made an incident report at the scene of a slip and fall and asked the plaintiff to sign it, but did not offer the plaintiff an ice pack or a chair to sit on when they were clearly in pain). The refusal to accept responsibility can also be supported by the defendant’s contentions in the case that others, including the plaintiff, were at fault for the incident (assuming there is a strong case that they were not).
Structuring the opening statement
Having a defined structure to an opening statement can be of great benefit in that not only does it keep the trial lawyer on track to include each topic that needs to be covered, but it also allows the opening statement to be presented in a format that takes into consideration how the jury will most easily follow and absorb what is being conveyed.
The trial themes can be worked into a structured opening statement. One such structure, which is discussed in the aforementioned books by David Ball, has the following general components presented in this order: 1) Presentation of the Safety Rule; 2) The Story of the Case: What the Defendant Did; 3) Explanation of Who is Being Sued and Why (i.e., defendant’s violation of the safety rule and failure to accept responsibility); 4) Undermining the Defendant’s Liability Contentions; and 5) Addressing Causation and Damages. The following is based on, and is somewhat a summary of, Ball’s technique.
Presentation of safety rules
This structure has the presentation of the safety rules at the very beginning. First, the blanket and specific safety rules, as crafted according to the previously mentioned criteria, are simply stated, followed by indicating that if the rule is violated, and as a result a person is harmed, the person or entity who violated the rule is responsible for the harm.
Example: “A building manager is never allowed to needlessly endanger people. The manager of any kind of building with a stairway, to which the public is invited to come, whether it’s a department store, parking garage, apartment building, hotel or school, is required to keep the stairway well lit so people can easily see the stairs. So if the stairs are not well lit, and as a result someone is harmed, the property manager is responsible for the harm.”
Starting with the safety rule or rules allows the jury to know what the case is about and provides context for the rest of the opening statement. Although more than one safety rule can be referred to in opening statement, no more than two or three rules should be used for the purpose of framing the case in opening. It is best to save any other safety rules that have been developed for use with trial witnesses and in closing argument.
The defense may object to this type of recitation of the rules in opening statement as being argumentative, or the judge may comment that it is too close to providing the law to the jury which is solely within the province of the court. In such cases, the plaintiff’s attorney should indicate that they are merely commenting on expected trial testimony to be offered by witnesses, lay and expert, regarding applicable codes, industry standards, and/or the defendant’s own policies, etc., that will indicate as much, and that they are about to tell the jury about said expected trial evidence.
After reciting the safety rule or duty, the jury should be told about the expected evidence supporting the existence of the rule and the purpose for which it was designed in general terms so it is understood that it is not the lawyer who is making up a self-serving rule, but an actual rule created by others specifically to protect the public from harm (e.g., “You will hear about national standards and building codes that require a certain amount of light in a stairway at a bare minimum; and you will hear that these standards and codes were created by both governmental and private organizations, specifically to minimize the risk of people falling and suffering severe injuries).
The story of the case: What the defendant did
After the introduction of the safety rule, the plaintiff’s attorney should segue into the facts of the case, with the defendant and its conduct being the central focal point. David Ball suggests stating, “Now let me tell you the story of what happened in this case.” People relate to stories, more than they relate to recitation of facts, and letting the jurors know that they are about to hear a story primes them to listen more intently.
The story should be simple, clear and concise and be primarily focused on what the defendant did. References to the plaintiff, wherever possible, should not be made until reaching the end of the story where the plaintiff is harmed. If the plaintiff is mentioned too early, or becomes the focal point of the story, jurors (especially tort-reform supporters) may begin to think of how the plaintiff could be blamed for what happened and that the plaintiff along with their counsel who brought this lawsuit in the first place, is the real threat to their community, not the defendant’s violation of the safety rules.
After the point in the story where the plaintiff is harmed, the attorney can refer to evidence regarding defendant’s actions, or inaction, that are consistent with the second trial theme, the defendant’s failure to accept responsibility.
What is crucial in presenting the story of what the defendant did, is telling it in a non-critical, non-accusatory manner because at this point of the opening, the attorney has not yet earned credibility with the jury and therefore must avoid what David Ball calls “premature advocacy.” Premature advocacy will not be taken kindly by the jury who is probably suspect of the plaintiff and plaintiff’s attorney for bringing a lawsuit seeking money in the first place. (Thanks a lot, Tort Reform!) Rather, the goal is to give a “just the facts, ma’am” (ala Jack Webb in Dragnet) story of what occurred, so that the jurors, who have already been told the simple safety rules, arrive at the conclusion that the defendant violated them, on their own. Here, it is much more acceptable to the jury if their critical thoughts of the defendant and what it did happen of their own accord, as opposed to their being pushed on the jury by the not-yet credible plaintiff’s attorney.
Who is being sued and why
After the non-critical story has been told, the plaintiff’s attorney can sum up what the jury has hopefully already concluded on its own – who is being sued and why. It is here that the jury is first introduced to the plaintiff by name, and the advocacy begins. (E.g., “We are here on behalf of Joe Client. We are suing Defendant Acme Management for two reasons. The first is because it violated the duty of property managers to have enough light in its stairways so that people can clearly see the stairs. The second is because Defendant Acme Management refuses to accept responsibility for its violation of its duty, and the harm it caused to Joe Client.”)
After telling the jury who is being sued and why, only key (i.e., not all) evidence which is expected to be introduced during the trial on the following topics, should be presented, in this order:
Defendant’s acts which violated the safety rule (e.g., defendant’s admissions in deposition or written discovery, expected witness testimony, photographs, video and/or documents, results of an expert’s inspection and/or testing, etc. that establishes the violation of the safety rule).
Why violating the rule is so dangerous, in general terms without specific reference to the subject case. (E.g., testimony of expert witnesses, and any defense concessions, concerning who created the rule [e.g., legislature as to statutes, codes and ordinances; authors of standards; defendant as to its own policies, etc.]; why the rule exists; how the rule protects people; the severity of harm that can be suffered if the rule is violated, and from where the evidence regarding same was obtained [e.g., CalOSHA statistics, National Highway Traffic Safety Administration – “NHTSA” studies, research papers, etc.].
How the defendant’s violation of the rule caused harm to the plaintiff in the subject case, in general terms (this is not the part of this structure where the full details of the harm and impact on the plaintiff’s life is given). (E.g., evidence that the defendant’s vehicle ran a red light and collided with plaintiff’s vehicle, pushing the driver’s side door into his left arm, torso and leg, and causing him multiple bone fractures and damage to internal organs, etc.; evidence that the plaintiff slipped and fell on spilled liquid left on the floor of defendant’s supermarket for hours, and landed so forcibly on the ground that she fractured her hip, etc.)
What the defendant could have and should have done to have followed the rule in the subject case. This helps to get the jurors thinking about how if they were in the defendant’s shoes, they would have been able to follow the rule. (E.g., evidence that the installation of brighter light bulbs would have provided the required minimum light in a stairway; evidence that industry custom and practice of designers of similar products is to include a certain type of safety guard which was absent in the subject product, but was inexpensive and feasible to include in the subject product’s design, etc.)
How following the rule would have prevented the harm to the plaintiff in the subject case. (E.g., expert testimony that had the defendant driver slowed down when facing the yellow light, rather than speed up, he would have been able to stop his vehicle so that the collision would not have occurred; expert testimony that people are X percent less likely to fall on a stairway when it is lit with the minimum required lighting).
Undermining the defense liability contentions
After the key evidence relating to the rule violation which is expected to be shown at trial is presented as outlined above, the plaintiff’s attorney should preemptively undermine the liability contentions expected to be offered, and referred to in opening, by the defense. There is obviously no rebuttal in opening statements, so this is the only opportunity before the presentation of evidence to address the evidence that supports defendant’s expected contentions. If the first time the jurors hear about these topics is in the defendant’s opening, it may be too late to overcome them by the time of the plaintiff’s case in chief.
To the contrary, when the jury has already heard about the topics central to the defendant’s contentions, and the evidence which tends to refute them, in the plaintiff’s opening statement, the defendant’s opening tends to fall flat, and the defendant’s attorney may even seem awkward when mentioning them.
Similarly, if the jurors hear for the first time, about certain facts or evidence that can be considered “bad” for the plaintiff in the defendant’s opening, they are liable to conclude that the plaintiff’s attorney tried to hide them, and as such those “bad facts” must be true and very damaging to the plaintiff’s case. By covering these topics in the plaintiff’s opening, they can be diffused before the defense has the opportunity to highlight them in its opening statement.
With regard to undermining the defendant’s liability contentions and “bad” facts or evidence, the plaintiff’s lawyer should not mention in opening that the defense will make the contention or present the “bad” evidence, but rather no reference should be made to the defense when discussing these topics, so as to show the jury that it was part of the plaintiff’s attorney’s original analysis of the case that the potential theories arose, but that evidence later acquired refuted those theories. (E.g., “Before we brought this case to trial we had to determine whether Joe Client had done anything wrong when operating the machine that caused his injuries. So we obtained the operator’s manual and took the deposition of the machine manufacturer, and they both confirmed that Joe used the machine in the exact way that the manufacturer expected the machine to be used”; or “Before we brought this case to trial we had to determine whether the fact that Joe Client had not had an eye exam in the ten years before the collision meant that his prescription was outdated and he therefore couldn’t see clearly when he was operating his vehicle. However, we took the deposition of Joe Client’s optometrist, and he testified that he performed an eye exam on Joe two weeks after the collision, and his prescription had not changed since the eye exam he performed ten years before.”)
Furthermore, liability positions the defendant took in discovery, for which evidence has been acquired to refute them, can be highlighted in opening statement not only to shine a light on defendant’s lack of credibility, but to support the theme of defendant’s refusal to accept responsibility. (E.g., “You will see the defendant’s answers to written questions in this case, made under an oath to tell the truth, that he was not responsible for causing the car crash because the light was green when he entered the intersection. However, the evidence will show that independent witnesses at the scene said his light was red for at least five seconds before he drove through it.”)
Unfortunately, not all bad facts can be dealt with effectively. So a careful analysis should be given as to whether it is worth it to abandon certain claims so as to make the bad facts irrelevant and inadmissible. Keith Mitnik, in his presentation, Winning at the Beginning, uses the example that if an attorney is also representing the client’s spouse in a loss of consortium claim, and there is evidence that the client’s spouse cheated on the client before the incident, it might be best for the attorney to talk to the clients about dropping the loss of consortium claim.
Causation and damages
The final subjects of the opening statement structure discussed herein are causation and damages. Obviously, damages is a significant topic, and as such at the very least, 25 percent of the plaintiff’s opening statement should be dedicated to it. The jury must come away from opening statements believing that its role of determining damages is just as important as its job to determine liability. David Ball gives great insight into the format of this portion of opening statement which should include the following, in this order: Introduction; Mechanism of Harm; Effect of Harm on Plaintiff’s Life; Fixes and Helps (economic damages); What Cannot be Fixed or Helped (non-economic damages); and The Plaintiff Before the Injuries.
Introduction to causation and damages
The verdict form may be mentioned at this point in opening statements to lead into the explanation of the damages evidence expected to be presented at trial. In line with David Ball’s suggestions, the lawyer might consider the following introduction: “You will be presented with a verdict form at the end of the case, which will have blank spaces on it for you to indicate how much money to allow in the verdict. So I have to show you my client’s losses and how severe they were so that you have a basis for your determination. I am not trying to get your sympathy. Of course, you may feel sympathy, but you can’t let it affect how you determine how much money to allow. You have to consider only the harms and losses. So here is what you are going to hear about those harms and losses.”
Mechanism of harm
After the introduction, there should be a discussion of the evidence that will show how the defendant’s negligent acts caused the injury, so as to establish both causation and harm simultaneously. An effective technique for this approach is to convey (that the evidence will show) how the negligent act caused the harm, by using a step-by-step guided tour through the mechanics of the injury, without using too many medical or technical terms. For example, how when the cars crashed, the plaintiff’s body moved back and forth extremely fast and hard, causing her head to hit the window. That the forces jarred her spine so severely that parts of it were permanently pushed out into the spinal canal which houses all the nerves that carry incoming and outgoing messages between the brain and the rest of the body. That the nerves that travel through the spinal canal to the arms were so compressed that it caused her arms and fingers to be permanently numb as well as arm weakness so severe that a major surgery was necessary to replace the parts of the spine that were compressing the nerves, etc. Simple visual graphics can be used here. The point is for the jury to visualize specifically the way the defendant’s negligent act harmed the plaintiff’s body.
After each segment of the causation/ injury explanation, the plaintiff’s lawyer should undermine the defense’s contrary contentions using the same approach explained above with regard to the defense’s liability contentions. Again, it is important to show how the defense came to the wrong conclusion, without actually mentioning the defense, by explaining that the plaintiff’s attorney explored the possibility of the negative conclusion, but ruled it out with the evidence that was obtained before coming to trial.
Effect of harm on plaintiff’s life
After covering the mechanics of the injuries, it is a prime time to discuss how those injuries affect the plaintiff on a very personal level and how they significantly intrude into the plaintiff’s life. Stories and anecdotes can be incredibly effective. Juries simply do not relate to, or fully appreciate, a recitation of a list of body parts that are in pain or have limitations. It is the difference between stating that the plaintiff’s back pain prevents him from lifting more than ten pounds, and telling a specific, detailed, and moving story about how that pain and limitation negatively impact the plaintiff’s life. For instance, jurors will be much more likely to connect with a story of how it absolutely breaks the plaintiff’s heart when his two-year-old daughter cries every time she asks him to pick her up and he must tell her “no” because if he were to lift her it would cause him such severe pain, he would be confined to bed for weeks after.
In order to be able to learn of these personal stories, and to be genuine and persuasive in sharing them in opening statement, the lawyer has to really get to know the client on a much deeper level. Trial lawyer Nicholas Rowley, and trial consultant Steven Halteman, in their treatise, Trial by Human, thoroughly discuss methods as to how to connect with clients in a way that gives the trial lawyer a unique ability to convey their stories to a jury. They stress the importance of spending time with clients and their families in their own homes, sharing meals and listening to their stories; and accompanying them through their daily routines and struggles so as to really be able to experience and relate to the injustice they have suffered. They advocate that this approach brings a level of true humanity into the courtroom.
Fixes and helps; and what cannot be fixed or helped
The presentation of the plaintiff’s injuries and the profound effects they have had on the plaintiff’s life naturally segues into the discussion of the plaintiff’s economic and non-economic damages. Using David Ball’s approach, the jury can be told that part of their decision, at the end of the case, will be to decide how much money it will take to fix what can be fixed, help what can be helped, and make up for what cannot be fixed or helped.
Beginning with what can be fixed or helped, the jury can be told of the evidence of the medical expenses, past and future (using reference to the doctors’ reports and orders, medical bills, life care plans, safety necessities, etc.) These elements of the damages can be explained as “what the physicians say is needed” to lend credibility.
Next, the jury can be told “what the loss of earnings records show” is needed to replace the money that was lost and/or will be lost by the plaintiff because her physicians determined she was not able to work because of her injuries (rather than just saying that the plaintiff lost earnings). These fixes and helps (i.e., economic damages) should be straight facts, without the use of emotions or any hyperbole as they may undermine the trial lawyer’s credibility. However, it should be explained that the defendant’s failure to take responsibility has prevented the plaintiff from obtaining these fixes and helps (which again supports the trial theme of failure to be accountable). Finally, it should be explained that this money goes to pay other people for what the plaintiff needs.
As far as what cannot be fixed or helped (i.e., non-economic damages), the jury should be told that none of the money for the fixes and helps makes up for the greatest part of the plaintiff’s harm, that is what the incident did to the plaintiff’s life. At this time, the list of harms in the jury instructions can be used as a guide in explaining the extent of the “human damages” suffered by the plaintiff (i.e., physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, emotional distress, etc. See CACI 3905A). Further, any exacerbation of prior injuries can be discussed during this segment of the opening statement by distinguishing the prior symptoms from those caused by the incident. Using a chart with two columns can be an effective tool for this task, and helps to undermine the defense’s contentions that the client’s symptoms were pre-existing due to prior injuries.
The plaintiff before the injuries
By now, the jury has heard about the plaintiff primarily in the context of their injured state and the significant impact those injuries have had on their life. By painting a picture, at the very end of opening statement, of how the plaintiff was before the injuries caused by the defendant, you are able to better communicate the profound impact those injuries have had on the plaintiff’s life. As the jury hears the evidence of how the plaintiff once was, it will not be able to help but think of how devastating the injuries that were earlier described have been to the plaintiff. To effectively describe the plaintiff’s life pre-injury, ample time should be spent with all damages witnesses to gather stories and fully appreciate the life of the plaintiff before the injuries. The use of photographs and videos, if permitted, can be extremely helpful in achieving this goal.
Discussing a monetary amount in opening
There is a split in opinion as to whether to discuss a potential verdict amount in opening statements (as well as in voir dire). One school of thought is that it is better to prime the jury for what the lawyer will ask for in closing argument than to surprise and possibly shock the jury when it hears a large amount for the first time at the end of the trial. Others believe that mentioning a dollar figure in opening statement eliminates the benefit of seeing how the evidence will come in at trial before deciding how much to ask for. If the trial goes better than expected, the amount given in opening statement will pigeon-hole the attorney to that amount, which by the time of closing arguments might seem too low. Similarly, if the trial does not proceed as expected, an amount already given in opening statements may be too high and offensive to the jury.
Different approaches on this topic are discussed by David Ball. If the decision is made to ask for an amount in opening statement, it can be achieved by explaining at the end of opening that all the evidence the plaintiff will present at trial is for the jury to see what caused the plaintiff’s harms and losses and how much money it will take to fix, help and make up for them; and that by the end of the trial the jury will see that the evidence makes the case the kind of case that the attorney will have to come back later and ask for an amount that seems really high now, but which the jury will later see is proper in this kind of case. Then the amount can be given.
Alternatively, if the trial lawyer chooses not to give a suggested verdict amount in opening, the jury can be told only what the economic damages are and that this money either goes to others for medical care, or gets the plaintiff even with what they would have earned had they not been injured; but that this money does not cover what was done to the plaintiff’s life, which in this kind of case is the most serious part. The jury can then be told that when they have seen all the evidence, they will know what to do.
Length of opening
The trial lawyer should not discuss each and every issue or reference every piece of evidence in the opening statement, but rather only what the jury will need (not necessarily what the trial lawyer thinks it will need) to understand the heart of the plaintiff’s case. A long opening statement can not only cause the most important parts of the presentation to become lost in the weeds, but if everything is shared with the jury in opening statement, it can become bored (and even irritated) when it has to listen to it all again through witness testimony. It is good practice to save certain evidence for later in the trial to keep the jury interested and engaged.
Although it is cliche, it is absolutely true: Trial lawyers must be themselves in front of a jury. Being genuine is an asset. It makes the trial lawyer more relatable in front of a jury (not to mention in life in general), and a trial lawyer cannot be genuine by mimicking other trial lawyers’ styles of presentation.
It is a great risk (although some pull it off) to come across as too impassioned in opening statement as the jury is already skeptical of trial lawyers, especially when it is often perceived that their goal is to get money out of the defendant at all costs. Before credibility is established throughout the trial, a jury may perceive too much passion as a form of manipulation. As such, where monotony should of course be avoided, as boring the jury is not an effective alternative, a measured tone which balances the two extremes should be used.
It is easy for the trial lawyer to talk fast in opening whether it be because of a worry about time constraints, or just pure excitement in telling the story of the case, and all the evidence that should result in a plaintiff’s verdict. However, talking fast is likely to upset everyone in the courtroom. Firstly, it is very difficult for jurors to process information that is delivered at a fast pace, and they will be less likely to absorb what is being conveyed. Secondly, court reporters will have a hard time keeping up, and the judge is likely to speak up on their behalf, not to mention the risk of having a less-than-accurate record. It may take practice, but the trial lawyer absolutely must control the speed of the presentation.
Care for what is said
The trial lawyer should take great care in what is said to the jury. Words absolutely matter. The opening should avoid legalese. It not only can confuse a jury, but give the impression that the trial lawyer feels superior to lay people. The trial lawyer should always choose simple and concise, over complex and wordy. Use “before” instead of “prior,” “after” instead of “subsequent,” etc. Further, the use of typical phrases seen in movies and television shows about jury trials should be avoided (e.g., “May it please the court,” “Ladies and gentleman of the jury,” etc.) Where it is often helpful to overcome objections in opening statement by prefacing a statement with “the evidence will show....,” it should be used sparingly. Actual references to testimony or evidence is preferable. (E.g., “You will hear from Joe Schmo who will testify that....,” “You will see photographs taken of....,” etc.)
The word “accident” should be avoided at all times. “Accident” is code for forgivable, as in “it’s not your fault, it was an accident.” Of course, the last thing a trial lawyer wants is for jurors to think the defendant’s conduct was “accidental” or “forgivable.” Rather, the goal is to have the jury believing that the “collision” or “incident” was due to a bad choice made by the defendant. (E.g., the choice to drive above the speed limit or to take eyes off the road; or the choice to wash a floor and not put up a caution sign while it is still wet.)
Finally, the trial lawyer should be careful not to indicate to the jury that certain evidence will be presented if it may not be ultimately delivered. Defense counsel will be sure to point out what was promised by the plaintiff’s attorney in opening statement, but which never came to fruition.
Use of visual aids and graphics
The use of exhibits and PowerPoint presentations can be extremely effective, however should not be overused, as it is difficult for a trial lawyer to connect with jurors if they are looking at a screen or board instead of at the lawyer. PowerPoint slides should have very few words or bullet points per slide. Otherwise, the jury will spend its time reading the slide rather than listening to the trial lawyer. Furthermore, the most salient points of the opening may be overlooked, lost in a sea of small words on a distant screen.
Before using exhibits or PowerPoint presentations, it is best practice to seek clearance from the judge at the Final Status Conference, or at the very least, before the first day of trial. To prepare and rely on what the trial lawyer wishes to show to the jury in opening statements, only to first be told that it will not be allowed right before, or during, the opening statement, can be an extremely rude awakening. Trial attorneys should be aware of, and prepare for, certain judges requiring the parties to meet and confer over what exhibits will be used in opening statements, or require the attorneys to show opposing counsel their PowerPoint presentations. In fact, Los Angeles Superior Court Local rule 3.97 – Use of Graphic Devices in Opening Statements states:
In opening statements to the jury by counsel, no display to the jury or reference should be made to any chart, graph, map, picture, model, video, or any other graphic device or presentation except (1) when marked as an exhibit and received in evidence, (2) by stipulation of counsel, or (3) with leave of court. With prior approval of the court, counsel may use the chalkboard or paper for illustrative purposes during opening statements.” As such, when possible, the trial lawyer should attempt to enter into a stipulation with opposing counsel with regard to the admissibility of certain evidence to avoid any last minute disputes. Motions in Limine may also be used to settle any issues before the trial commences. If judicial approval cannot be obtained prior to the day of opening statements, it is wise for the trial lawyer to have a “Plan B.”
The use of photographs and tape recordings intended later to be admitted in evidence, as visual or auditory aids, has been deemed proper; see People v. Fauber (1992) 2 Cal.4th 792, 827, and People v. Wash. (1993) 6 Cal.4th 215.
Furthermore, it is permissible to use videotaped depositions of defendants and their experts for any purpose in trial, not to mention extremely effective. Inasmuch, the plaintiff’s lawyer can use specific clips of concessions made by the defense in videotaped depositions. Code of Civil Procedure section 2025.620 states in part:
(b) An adverse party may use for any purpose, a deposition of a party to the action, or of anyone who at the time of taking the deposition was an officer, director, managing agent, employee, agent, or designee under Section 2025.230 of a party. It is not ground for objection to the use of a deposition of a party under this subdivision by an adverse party that the deponent is available to testify, has testified, or will testify at the trial or other hearing. . . . (d) Any party may use a video recording of the deposition testimony of a treating or consulting physician or of any expert witness even though the deponent is available to testify if the deposition notice under Section 2025.220 reserved the right to use the deposition at trial, and if that party has complied with subdivision (m) of Section 2025.340. (e) Subject to the requirements of this chapter, a party may offer in evidence all or any part of a deposition, and if the party introduces only part of the deposition, any other party may introduce any other parts that are relevant to the parts introduced. . . .
If the trial lawyer intends on playing specific clips from videotaped depositions, it is important that designations of the corresponding deposition transcript pages and line numbers be timely filed and served.
A well-thought-out and effective opening statement can provide the necessary momentum to achieve, if not clinch, a plaintiff’s verdict. As such, preparation of the opening statement should start at the very beginning of the case, and be contemplated throughout its entire pendency, so that it can be fashioned in a manner that increases the likelihood of the jury absorbing, and being persuaded by, the trial lawyer’s presentation.
by the author.
For reprint permission, contact the publisher: Advocate Magazine