By way of example, in a contract dispute, the opening might begin as follows:
This case is about broken promises. Broker had a contact with Jones Corporation. Broker promised to buy insurance, carefully read the insurance policies, and then tell Jones Corporation exactly what was and was not covered by insurance. Jones paid Broker $1 million a year for these promises. Yet, when Hurricane Harvey hit, Jones learned—only after it suffered $40 million in property damage—that it had only $10 million in insurance. Broker told Jones Corporation it would have $50 million. Broker did not do what it promised. It did not get Jones Corporation $50 million in insurance. That’s why we are here today. Ladies and gentlemen, my name is Mary Roe and I represent Jones Corporation. At the end of the trial, I will ask you to hold Broker responsible for the promises it broke, costing Jones $30 million.
Other successful attorneys believe that jurors are more likely to remember the first and last thing that they hear. They therefore structure their order of proofs and statement of theme looking to maximize their presentation based on concepts of primacy and recency. Primacy suggests that what is heard first is likely to be believed; recency suggests that what is heard last is easiest to remember. No matter which the approach best fits a case’s individual circumstances, avoid starting with the following:
- “I’ll be brief.”
- Why: The jury may not regard your opening as short. Avoid those timing it or judging its length from needlessly doubting your veracity.
- “Ladies and gentlemen of the jury.”
- Why: Some gender references may be regarded as insensitive or offensive; avoid unintentionally alienating jurors.
- “May it please the Court.”
- Why: It rarely pleases the trial court when the parties have failed to resolve and settle a case. Get off on the right foot with the judge and jury by taking the time to say something more impactful when you first stand to deliver an opening statement.
An opening should order important facts to support the dispute’s theme. A successful opening also will tell an engaging story from a client’s perspective, describing logically what happened. Chronological organization is often employed because jurors may have an easier time following a linear story. Effective openings also introduce only those witnesses or documents important to the story. They often use visuals, such as documents and demonstratives, in a way that enhances credibility and maintains jurors’ attention. By way of example, in a breach of contract case, the jury might find a client’s story more believable and easier to understand if counsel displays an overhead graphic showing the contract’s key provisions.
Many jurors are both audio and visual learners, meaning they will better understand by seeing as well as hearing an opening. Consider and address all necessary requirements for use of proofs and demonstratives during opening statements. Although the rules vary by jurisdiction, generally speaking, for counsel to use an exhibit during an opening statement
- the exhibit must be relevant and assist the trier of fact,
- the exhibit must not be prejudicial or inflammatory, and
- counsel must have a good-faith expectation the exhibit will be admitted into evidence.
Often demonstratives need be shared with the court and opposing counsel before openings or pre-marked as exhibits (or both). Whether or not this is required, it is best to attend to objections before trial (for example, at a pretrial conference). This will permit opposing counsel’s objections to be addressed before the jury sees the exhibit and will avoid opposing counsel’s objections from interrupting the opening statement. If demonstratives or exhibits are not permitted, consider bringing an ELMO or an easel on which to write down key points that the jury should focus on.
After introducing the theme, trial counsel should present the client’s case in the best and most accurate light possible, telling the story in a way that will make the jury want to decide in the client’s favor. Jurors often base their decisions about disputes on the impression received during an opening statement. The best openings offer a clear and persuasive story, using vivid images and metaphors. They introduce people and documents as they fit logically into the story and assemble the facts in a way that leads to only one compelling conclusion—the one the attorney is advancing at trial.
Developing a simple theme can be challenging. It is nonetheless important because it can be the bond that holds together the facts and the relevant law. The right theme also may help jurors argue a party’s case, when deliberating. Recall O.J. Simpson’s ultimately successful defense theme: “If the glove doesn’t fit, you must acquit.”
Effective openings consider strategically how, if at all, to deal with bad facts. The decision is case-dependent. A good opening may bring up warts without dwelling on them too long. Explain the bad facts in one to two sentences, making sure your explanation has proper context in your story and offers jurors a reason to understand that the bad facts are not bad for your client’s case. This can offer a measure of credibility and blunt the negative facts before they are raised in an adversary’s opening statement. If plaintiff’s counsel introduces the bad facts about the plaintiff’s case, defense counsel may not need to address them, or defense counsel may need to clarify and put them in what he or she regards as the more proper context. Addressing a bad fact out of context, however, can lead jurors to give it undue weight.
Trial counsel should speak directly, pleasantly, and confidently to the jury, attempting to make a connection with each juror. When lawyers read only from notes or fumble for words, they appear unprepared, and opportunities are lost. Trial counsel should be well prepared and make eye contact, leaving the jury with the impression the attorney is pleasant, professional, and competent, and knows the facts and believes in the client’s case.
A trial attorney should never remind the jury that what is said in his or her own opening is not evidential. Although true, the trial judge will likely make this point. It is not helpful to repeat it, causing the jury to wonder if it should be discounting or disregarding the opening statement. Instead, a jury should be made to view the opening as a useful tool by which it can understand the case that counsel intends to present to it by the proofs offered and during examination and cross-examination of witnesses.
Unlike closings, opening statements should not offer argument. Although judges vary in how much argument they will allow in an opening statement, most jurisdictions do not permit argument or discussion of law during the opening statement. See, e.g., United States v. Anthony, 345 F. App’x 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. . . . [T]he court can exclude irrelevant facts and stop argument if it occurs.”)). Rather than argue and risk being admonished by the court in front of the jury, use the facts in a compelling way to persuade the jury to the client’s way of thinking, but remain accurate and credible. Avoid technical jargon and legalese so jurors of all backgrounds can understand the case and reach the client’s desired conclusion.
Finally, an effective opening statement ends with confidence, reminds the jury of the case’s theme, and tells the jury exactly what is expected when the case concludes. In a breach of contract case, a plaintiff might say, “At the end of the trial, I will ask you to hold the Broker responsible for breaking its promises and award my client the money to which it is entitled.” A defendant might say, “After hearing the evidence, I will ask you to return a verdict for my client, finding it lived up to the promises in its contract. Thank you.” Recall, however, that at the close of the case, the trier of fact will deliberate and ultimately consider whether the evidence presented by a party meets its burden of proof (if any) and delivers on the promises counsel made in the opening statement.