July 15, 2016 Articles

Construction 101: Opening Statements

Studies have shown that trials are sometimes won and lost just through the opening statement. Here are some tips for presenting them effectively

by Stephen Skoller

The opening statement is the opportunity for the attorney to tell the jury what the cause of action is about, what evidence the jury will hear, and the client’s side of the story. In an ideal opening statement, the attorney will paint a picture of the case for the jury so that when the jury hears the evidence, it can place the various pieces of evidence in the relevant parts of the story.

The opening statement is not the appropriate time to argue your case—rather, it is a time to present the facts in the most favorable light. The recitation of facts may be slanted in favor of one party, of course, but it must remain truthful. Although jurisdictions and judges vary in how much argument they will allow in an opening statement, most jurisdictions do not allow much argument or discussion of law during the opening statement.

Most opening statements take between 10 and 45 minutes, although, depending on the complexity of the case, some may take longer. Some jurisdictions have developed rules for how long opening statements, as well as closing statements, may be. Other jurisdictions leave such time limitations to the judge’s discretion. Be sure to check the local rules or the judge’s practices. It can be quite embarrassing, as well as damaging to your credibility with the jury, to have the judge limit your opening statement because you are taking too much time or are unnecessarily arguing the law?

Opening statements are important because studies have shown that trials are sometimes won and lost just through the opening statement. Studies have revealed that jurors often make up their minds based on the opening statements. They may consider the evidence, but the impressions the jurors form during the opening statements often greatly affect their view of the facts and ultimately the final decision.

Although the structure of an opening statement will depend on the particulars of the case, the jurors, and your individual style, there is a general outline that can help you start off with a clear, organized, and—most importantly—persuasive opening statement.

In general, your opening statement should consist of a beginning, the facts your evidence will establish, and a conclusion:

  1. an introduction during which, by way of language, demeanor, and gestures, you try to establish credibility with the jurors;
  2. a narrative account stating the facts and containing an implied argument; and
  3. a conclusion or summary.

Remember, you are telling the story of your client’s affirmative or defensive position.

Goals of Opening Statements

An overarching goal of the opening statement is to introduce the case theme to the court and jury and weave that theme through your opening statement so it resonates and is not forgotten. You must take this opportunity to put an entire story in a compact package so that the jury will be able to get a bird’s-eye view and better comprehend and appreciate the issues and the evidence that will follow. Try to place your remarks in the context of a “case theme.” A case theme allows jurors to later integrate the evidence into the consideration of trial evidence and in deliberations; and a theme will make otherwise disjointed evidence make sense. In sum, you should strive to make your opening statement a preview or synopsis of what is to follow in the trial with the case theme the bow on the package—always present.

Importantly, this is also your first opportunity to, hopefully, bond with the jury. Attorneys should establish rapport with the court and jury in the opening statement. The goals and focus beyond providing an understandable “story” should include getting the jury to identify with your case; coming across as sincere, honest, understanding, intelligent, dependable, considerate, warm, kind, friendly, and cheerful; letting the jury know that you will be their credible guide through the trial process.

Care should be taken to avoid being ill-mannered, unfriendly, hostile, loud-mouthed, conceited, insincere, unkind, untrustworthy, malicious, or obnoxious. Certainly, you should not demean, speak down to, or “insult” the jurors. Do not overtly treat the opening statement as an “argument.” The opening statement itself has an intro, body, and conclusion. It is a statement, not an argument! Do not encourage the jury to reach conclusions from abstracted data.

Rather, use the opening statements to state “facts” that you reasonably anticipate will be supported by the evidence. Do not promise more than you can produce! Give the jury your story consistent with the evidence that identifies the parties, the scene, instrumentalities, dates and times, the issue, what happened, the basis of liability or non-liability (or the basis of guilt or non-guilt), anticipating and refuting defenses by the other party, damages in civil cases, and conclusion.

The Introduction Stage

This is your opportunity to communicate your case theme, your summary of the facts entitling your side to a favorable verdict, and your enthusiasm about trying the case.

The theme is presented during the first minute. A typical first sentence should be something like the following examples:

  • This is a case about taking chances.
  • This is a case about an innocent man wrongly accused.
  • This is a case about a wrongfully accused man who instead deserves our honor.
  • This case is about taking responsibility for wrongful actions.
  • Greed and misfortune leads us here today.
  • Unjust blame of the innocent is why we are here today.
  • The prosecution’s rush to judgment is why were are here, at the detriment of an innocent and loving father.

You will follow the theme by explaining the key issues and previewing the important testimony:

Ladies and gentlemen, this lawsuit was filed because the defendant’s car was following too closely behind the car of Mary Jane Fox, the plaintiff. The defendant, Mr. Hare, was not paying attention to the traffic ahead of him. As a result, Mary Jane was hit from behind by Mr. Hare. She suffered a broken and separated leg, and she will have this injury for the rest of her life.

Give a preview of the potential witnesses and their names and a brief comment on the scope of their area of testimony. In short, personalize your client, personalize your witnesses and experts during the opening so that the jurors can develop a sense of anticipation for who and what they will be hearing. You have lived with the case a long time, but this is the jury’s introduction, so remember that difference. Your knowledge is not the knowledge of the jury members.

The Body Stage

Get into the details. This part of the opening statement contains most of the information. The plaintiff will go first and therefore has the opportunity to place the “facts” and anticipated testimony and documents before the jurors, first. This portion of the statement should set the scene and context of the factual incidents; describe the instruments of the liability; provide the date, time, and other relevant objective factors if important to your case; and reiterate your theme and link it to the issue of your case. Then tell your best story of what happened (based on what the evidence will show). Use vivid language when telling the story (yes, this can be done in a construction case)—make it real for the jury. State the legal elements to be proven (go to the law library to find this). The plaintiff should anticipate and refute the defendant’s defenses. Otherwise, after you have spent your time in front of the jury giving a compelling story, the first words that the jury hears from the defense are a series of contrary statements, which can leave the jurors feeling that the plaintiff was somehow withholding this information.

The defense attorney speaks second. Therefore, it is beneficial (even though the judge will have likely stated the same in opening comments from the bench) for the defense attorney to tell the jury at the outset that there are at least two sides to every story and that they should not reach a decision in the case until they hear from the defense’s side. From there, the defense opening will follow the same general directions discussed above.

Counsel for each side, but particularly plaintiff’s counsel, must evaluate whether to bring up case weaknesses—it might be good to take the sting out of the weakness right away if the weakness is to become an issue—but diminish the importance of the weakness (but never make it appear to be an apology or show it as a debilitating aspect of the case). Failure to bring this up can again result in jurors feeling that something was withheld from them.

Do not argue or state personal opinions (save arguments for closing arguments). This is an “opening statement,” not “opening argument.” Instead, use your words to provide guidance as to how the jury should view the facts to be presented, without stating that you are doing this.

Detail and order must be provided in the body of your statement to give it life and credibility. Do not just say your client was driving carefully, but also state the facts supporting such a claim (have support for contentions). At the same time, do not go overboard with detail. Referring to every single detail is poor strategy. Instead, look for the pertinent details (the best ones for your case and the worst ones for the other side’s case). The overall structure of the story should be chronological—beginning, middle, ending (juries follow a chronology best). Do not promise anything that the proof will not show. If you promise more than you later give, the other side can note those unfulfilled promises to the jury in closing argument and prove weaknesses in your case. Of course, the deliberate inclusion of matters that cannot be established by admissible evidence may constitute a mistrial (i.e., “I expect the defendant has done far worse than what we can prove here because the defendant really is a rotten guy.”). It is usually best to avoid summarizing or refuting the opposition’s case, but it is often good to forewarn the jury to watch for certain attempts at counter-persuasion the other side will use against you (it inoculates the jury to be resistant to counterinfluence by first exposing the jury to the arguments involved).

 

Conclude the opening statement by hitting the highlights of your case (let the jury know what to look for). Simply and directly reiterate your top facts and state that the truth will show a verdict for your client.

Final Tips on Presenting the Opening Statement

Have a narrative style, get the attention of the jury, and use subtle persuasion. Opening statements are basically stories—good storytelling is the essence of effective narrative style. Be clear and specific, and by all means, avoid legalese—talk to the jury in clear language. Simple words should replace complex ones. Simple sentences are easier to follow and remember. Use words wisely and for a purpose—make the story vivid to transform the ordinary into the exciting. Incorporate imagery, and relate to common experience. Analogies supply a sign of something familiar to the jurors’ experience and knowledge.

This reminds me of my father reading Robinson Crusoe to me when I was a little boy. Remember when Robinson Crusoe was on the island for such a long time all alone? One morning he went down to the beach and there was a footprint in the sand. Knowing that someone else was on the island, he was so overcome with emotion, he fainted. And why did he faint? Did he see a man? Did he see a foot? No. He saw a footprint that was not his. He saw marks in the sand, the kind made by another human foot. He saw circumstantial evidence that he was not alone. So let’s look at the facts of this case—for those tracks that prove the truth.

Keywords: litigation, construction, opening statement,

Stephen Skoller is an attorney at Skoller Law, LLC, in South Orange, New Jersey. This article is adapted from his presentation at the ABA East Coast Regional Construction Trial Program in New York City, New York, on Friday, March 4, 2016.

 

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