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January 31, 2019 Feature

Opening Statement: The Importance of Making It Memorable

By Philippa V. Ellis

The opening statement phase of the trial must be implemented with a strategy in mind. Tactical planning is a necessary component for delivering an effective and memorable opening statement. This is true whether a jury or a judge is the arbiter. The tactical planning phase should begin when it becomes evident that the litigation is headed to trial.

Development of the Opening

If you have yet to handle many trials or feel a sense of uneasiness, framing the platform for your opening statement should begin with outlining initial brainstorming ideas. Building upon the initial outline happens naturally if you are familiar with the facts that must be proven. Outlining is a great starting point for crafting an impactful opening statement that captures the strongest evidentiary highlights while acknowledging and addressing any trouble areas.

The tactical planning exercise also can benefit from input from trusted laypeople as they listen to your proposed opening statement presentation. This strategy is less expensive than a focus group; however, the focus group method can be an invaluable tool for fine-tuning an opening statement.

Jury Versus Judge as Arbiter

If the trier of fact is a jury, your opening statement should “speak to” a layperson who has no knowledge of the law or the facts of your case. Examine the evidence, objectively, and develop a plan of action for drafting an opening statement that aids the jury in connecting the dots between the facts and favorable evidentiary support. While planning the opening statement, consider what can be proven with direct evidence versus circumstantial evidence. It is worthwhile to walk the jurors through direct and circumstantial evidence so that they will embrace why circumstantial evidence is equally as critical as direct evidence.

Opening statements are as beneficial in bench trials as they are in jury trials, unless the judge advises the lawyers otherwise. In bench trials where opening statements are encouraged, judges appreciate a road map of evidence. The ingredients for the road map of evidence provided to a judge should be drafted in the form of a trial brief or memorandum of law and include the following items, to the extent they are applicable to the type of case presented and allowable in your jurisdiction: (1) timeline, (2) citation of authorities chart, (3) outline of relevant facts, (4) outline of the opposing party’s evidence lacking in relevance, (5) calculations related to damages, and (6) evidentiary support for your client’s position. A component to the road map should also include a listing of exhibits in numerical order and witnesses in alphabetical order, with a short synopsis linking each witness to the case.

Waiver of an opening statement is usually inadvisable. It might be a reasonable alternative in a bench trial when the judge has a deep familiarity with the facts. However, when litigating before a jury, waiving a first opportunity to provide the jury with a preview of the evidence is a risk not worth taking. In general, there is rarely a rational reason for waiving an opening statement.

Tips and Recommendations

Tips and recommendations for presenting memorable opening statements to lay jurors include the following: (1) grasp the importance of primacy and recency; (2) heed scope and time-management restrictions; (3) fine-tune format, content, and structure; and (4) achieve optimal delivery methods.

Primacy and recency. Use your opening statement to introduce significant evidence to the jury. Highlight what you will prove and why it is key to your client’s position. Preparing the jurors for evidence that they will be asked to scrutinize is the primary goal. In the event that your client has the burden of proof, take the opportunity to cover evidence supporting key elements of what will be proven. When presenting this opening statement, primacy and recency are critical terms to keep in mind because most people remember the first and last information that they hear. This means that your opening statement should be structured in a manner that ensures that the most impactful evidence, intended to be proven, is discussed as starting and ending points.

Scope and limitations. Opening statements must adhere to court rules regarding scope and time limits.

The allowable scope of the opening statement is within the court’s discretion. Know your jurisdiction’s rules governing the scope and limitations of opening statements.

Although the rules may vary depending on the jurisdiction, all courts agree that arguments are not allowed during this phase of the trial. Interjecting argument invites objections and admonishment by the judge. Ultimately, overstepping the bounds of the permissible scope diverts the jurors’ attention away from the core message.

Furthermore, restrictions on the admissibility of documents must be respected. Ensure that the opening statement does not overstep the bounds of the court’s rulings on motions in limine. If no stipulation exists regarding the admissibility of documentary evidence, the documents cannot be displayed during the opening statement. If in doubt, err on the side of caution. You may refer to the documents if you have a good faith belief that the documents will be admitted into evidence. However, under no circumstances can inadmissible evidence or evidence not yet admitted be displayed to the jury during the opening statement. A mistrial during the opening statement can happen, and it is critical to avoid this.

In addition to scope, time is a factor. It is important to understand any time limitations imposed by the court and rightsize the presentation accordingly to avoid the potential of a truncated opening statement.

When faced with presenting complex evidence and terms within time constraints, a suggested method to achieve simplification involves the use of a demonstrative timeline as the basis for talking points and translation of complex terms to understandable language. Both methods will achieve time savings; in addition, a timeline provides memorable guideposts for the jury to follow, and simpler language makes the case more emotionally accessible for jurors.

To simplify a case mired in complex terms and evidence, avoid using legalese and overcomplicating the facts and evidence. Simply put, use plain language. Below is an example of two ways in which the same point can be made:

“The evidence will illustrate how the plaintiff failed to exercise due diligence in fully examining and scrutinizing the investment opportunity.”

“You will hear testimony about how the plaintiff failed to check it out before investing her money.”

The stark difference in not only lucidity but also length is palpable when you read the contrasting sentences next to each other. Keep this example in mind as you are constructing your opening statement.

In addition to adhering to court-imposed time limitations, an opening statement that avoids taking the approach of covering every facet of anticipated evidence has other benefits as well. Oftentimes, less is more. In this sound-bite era in which we live, with shortened news cycles and compromised attention spans, a lengthy, granular opening statement may be an exercise in futility. Of course, lengthy presentations may be necessary in cases involving complex concepts and multiple parties; however, most cases do not fall into this category. It is truly a judgment call on whether the litigation justifies a long and protracted opening statement.

Structure, content, and format recommendations. At the outset, always introduce your client. This serves to personalize and familiarize a group of strangers with your client. This is a vital first step, regardless of whether the case involves a merger dispute, personal injury claims, class action plaintiffs, or corporate defendants. Avoid referring to your client as plaintiff or defendant due to the impersonal nature of the reference. The goal is to invite the jurors to become acquainted with your client.

As your opening progresses, emphasize favorable facts bolstering your client’s position and deal with weaknesses expected to be revealed in the opposing party’s evidence. Do not avoid damaging evidence, but focus on highlighting evidence supportive of your client’s top-priority “winning” points. Supply a road map of pivotal admissible testimony and documentary evidence. Illuminate deficiencies in your opponent’s evidence. The goal is to arm jurors with talking points supportive of your client’s claims or defenses.

Avoid overstating the evidence, and ensure that there is sufficient evidentiary support for every item of evidence previewed during the opening statement. Limit the opening statement to making only promises that will be honored. A jury will hold not only counsel but also the litigants accountable for proving what was introduced during the opening statement. Likewise, opposing counsel will remind jurors of the absence of proof and your failure to keep any promises made during the opening.

In terms of format, simplifying the case, even when the concepts are complex, makes the opening memorable. Taking a storyteller’s approach is most effective for keeping the presentation interesting and engaging. Also consider using analogies in your opening presentation. Analogies go a long way toward achieving a memorable and relatable approach in delivering information to the average layperson jury. Weave the theme and theory of the case into the opening statement. Doing so aids in solidifying your client’s position in jurors’ minds. Ultimately, it helps jurors comprehend why your client should prevail.

Tell the jurors why the evidence they will hear supports your client’s position. Specifying the verdict that your client seeks and why you believe the evidence will justify the verdict lays the groundwork for the jurors to weigh the evidence with your client’s position in mind. This is often an effective closer.

Delivery pointers. Eye contact often is considered an indication of honesty and sincerity. Consider how you perceive others when they avoid eye contact during a conversation. If you find public speaking a challenge, practicing the opening statement is a worthwhile exercise. Doing so will assist in increased direct eye contact with jurors because, with adequate practice, you are less likely to find yourself anchored to a scripted speech.

Your delivery method should strive to avoid interjecting unnecessary distractions or offensive body language. Examples of distracting body language include flailing hand/arm gestures, moving hands in and out of pockets, clicking an ink pen, positioning long hair behind the ear, and excessive walking and pacing. Some jurors are offended by the use of an index finger to emphasize a point if the index finger is pointed toward the jury. Distracting movements and gestures can minimize the level of the jurors’ attention to the words being uttered.

Whether you deliver the opening statement from behind the lectern or not should depend on what feels natural and whether the court permits you to move away from the lectern. In federal court, delivering the opening statement while standing behind the lectern is the sole option.

The use of technology, such as PowerPoint slide deck presentations, aids in explaining complex terms and bringing life to the opening statement. When using technology, always have a backup plan and investigate the court’s technological capabilities—before the trial commences—to minimize or eliminate technology-related glitches.

The manner and style of communicating the opening statement varies, depending on the case and the counsel’s personal style. If a normal manner of communicating includes projecting your voice loudly, then attempting to suppress intonation will be portrayed as inauthentic. In the event that your speaking style is monotone, making a colorful presentation will be viewed as somewhat unusual unless the ability to mask your true communication style has been mastered. Be yourself. Authenticity rules the day and is the most effective method for advocating your client’s position.


In summary, the opening statement is a pivotal phase in the trial where introducing the evidence to the jury is the goal.

An incredible and effective tool for honing opening statement preparation and overall trial presentation skills is enrollment in a trial academy. Such trial academies are offered by various organizations as well as TIPS, in conjunction with the American Board of Trial Advocates (ABOTA). Each spring, the ABA-TIPS / ABOTA National Trial Academy is held in Reno, Nevada, at the National Judicial College. Trial academies offer skills building for beginners and instruction for seasoned lawyers seeking a refresher.

First impressions are lasting. As you outline what you intend to prove, make the opening memorable. Although the opening must be delivered without interjecting argument, the tone should be persuasive. The manner of presentation and content should be delivered in a way that will hold jurors’ attention and ensure that your message resonates with them.

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By Philippa V. Ellis

Philippa V. Ellis is a partner at Owen, Gleaton, Egan, Jones & Sweeney, LLP, in Atlanta, Georgia. She is the 2018 director-elect of the National Trial Academy, which is sponsored by the American Bar Association and the American Board of Trial Advocates. She may be reached at [email protected].