Volume 18, Number 2
March 2001

Trial Practice

Home Field Advantage

The Opening Statement That Closes

By Brent O. E. Clinkscale, Riché T. McKnight, and Kenneth C. Gibson

Though what you say is not evidence, your opening statement may have as much or more impact on the jury than any one thing a witness says. Use opening statements to state objectively what evidence you intend to present in order to help the judge and jury understand and follow the testimony and exhibits that you will introduce at trial. Given this limited purpose, courts have placed numerous restrictions on opening statements.

For example, you cannot argue the merits of your case. You also cannot discuss inadmissible evidence, evidence of doubtful admissibility, or evidence that you do not have good reason to believe will surface at trial. You should neither discuss the applicable law nor express your personal opinions about the evidence or the case. Operating within these limitations, however, you have great leeway to prepare the jury to appreciate your client’s perspective, which can make all the difference in a hard-fought trial. Be an advocate, not a narrator. Although you cannot argue in opening statements, no rule of law says you cannot have an impact on the jury. Tell a story. Attempt to engage, intrigue, and involve the jury in your client’s case so jurors will want to pay attention to the evidence as it unfolds. Of course, the best stories have a point. Find a theme for the case that the jury can relate to, one that gets them to reach back into their own experience and emotional makeup to identify with your client. Paint a word picture, or find a memorable phrase that helps the jury grasp in an instant why they should side with your client.

Take a rear-end collision case, for example, in which a young man suffered brain damage. The accident occurred because a truck driver was changing lanes in heavy traffic and did not see the plaintiff stop in front of him. The theme for that case was "An erratic lane change led to a catastrophic life change." This one phrase fixed blame on the defendant and communicated the horrible impact of the defendant’s reckless conduct on the plaintiff. Or take the case where a contractor had improperly installed valves at an oil refinery, causing the valves to leak hydrocarbons into the air, which led to an explosion. The theme in that case was "Ladies and gentlemen, they contracted to build an extension to the oil refinery, instead they built a bomb!" The themes used in both cases said everything necessary about the cases. Equally important, they were graphic, easy to remember, and shaped how the jury interpreted every piece of evidence admitted at trial.

After picking a theme, use the principle of primacy to get the theme across. By placing a crucial point prominently at the beginning of your opening, you capture the jurors’ attention when they are most attentive. For example, in a products liability case where the plaintiff was grievously injured, the plaintiff’s counsel capitalized on the drama of the initial moments of opening by slamming home the extent of the plaintiff’s injury. Effectively exploiting the first few minutes of opening by clearly depicting the bleak circumstances of plaintiff’s existence, plaintiff’s counsel earned the jury’s attention for the remainder of the trial.

Finally, you may want to use questioning to expose the weak points of your adversary’s case without specifically commenting on the evidence that you anticipate your adversary will present. You might turn the jury against your opponent by posing to the jury questions that opposing counsel cannot answer, yet must answer to make sense of her case.Convey a sincere and genuine interest in your client’s case. Conveying a sincere and genuine interest in your client’s case during the opening statement does not mean that you should manufacture undue emotion in an attempt to draw pity from the jury. Nonetheless, you must get across the fact that you believe in your client’s case and the reasons why you do. If you are unable to convey commitment to your client’s case, why should the jury accept what you have to say or believe what your client says? While you are forbidden to say what you think about the credibility of the witnesses, the jury must understand that you are sincere in what you tell them, and they will look for confirmation of this in your face, your body language, and your voice. Develop a reputation for being credible rather than deceitful. It is imperative that you maintain your credibility throughout the trial. Only make promises in your opening statement that you can keep as the case proceeds. If you have no credibility, you have no case. From the moment you stand to present your opening, the jury begins to assess your quality of candor or your propensity for deceit. The jury’s assessment of your truthfulness often spills over to the jury’s assessment of your client, your witnesses, and the entire case.

Establish your credibility by opening as a counselor rather than as a magician. Do not suggest that you will produce startling revelations at some point during trial. Jurors dislike being kept in the dark. They appreciate and identify with counsel who exude arrogance-free confidence and professionalism. Accordingly, position the jury on your level during opening statement. Help the jurors understand that they are part of a team brought together to solve the case. Accomplish this by telling the jury what you know—both good and bad. Address your weak points in the opening. By immediately addressing the weaknesses of the case before your opponent gets the chance, you can explain the circumstances and blunt the attack.

Likewise, you can gain credibility by taking the high road in your opening, avoiding personal attacks on the opposing party and her counsel. Jurors need time to form their own impressions about your adversary. If you come on too strong, the jury may tag you as the typical abrasive, ruthless lawyer and sympathize with the scoundrel that you have skewered. Instead, pose questions about the opposition during opening, leaving the jurors to conclude themselves that the shoe does in fact fit, and the bad guy should wear it.

Finally, never promise more in opening than you can deliver at trial. You can gain great advantage at the end of trial by linking up promises you made in opening statement with the testimony given at trial. By the same token, the jury will slay you if you promise to prove something important and then fail to come through. Help the jury identify with your client. Oliver Wendell Holmes, Jr., once said, "The life of the law has not been logic; it has been experience." This applies to the way juries decide cases. They draw on their subjective experiences and emotions to evaluate what they see and hear; then, they rationalize how they feel with logic. Therefore, draw on the jurors’ life experiences in your opening to help them identify with your client viscerally. This is not to imply that you should talk in terms of emotions. Rather, try to use imagery and evocative facts that lead the jury on its own to develop a sense of empathy for your client. Follow with the logic that will help the jury make sense of the conclusion that it wants to reach.

As attorney Robert Begam noted, "The first thought, the first image, the first argument, the first word you hear is the one that has the most profound impact." You get only one chance to make a good first impression. If you perform your job well, the jury should appreciate that you are an honest lawyer with a client who has strengths, weaknesses, and problems that the jury can understand and may share.

Brent O. E. Clinkscale is a partner and Riché T. McKnight and Kenneth C. Gibson are associates at Womble Carlyle Sandridge and Rice, in Greenville, South Carolina.

- This article is an abridged and edited version of one that originally appeared on page 6 of Litigation, Fall 2000 (27:1).

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