CHAPTER 11 "OPENING STATEMENT"
I. THE PURPOSE OF THE OPENING STATEMENT
A good opening statement is a map and diary rolled into one; it anticipates where the trial path will go and highlights the testimony and evidence that will be presented by the witnesses.
The three general purposes of opening statements are to grab the fact-finder’s attention, to assist the fact-finder in understanding the anticipated events of the trial, and to advocate for your client’s position.
A. Grab the Opening Moment
The competition for the fact-finder’s imagination begins the first time you and your opposing counsel speak. This moment is crucial. If you can place a mental image in the minds of the judge or jury, you can directly influence the way they interpret the evidence at trial.
Consider, for example, the different mental images evoked by the terms “billiard parlor: and “pool hall.” For most people, a billiard parlor is thought of as a formal, reserved, well-lit and fairly respectable establishment. A pool hall, however, is more likely to be pictured as smoky, dark, perhaps slightly threatening, and probably a little seedy. Along with the contrasting images, the fact-finder will make different inferences about events occurring in these two places. In general, things seem to happen differently in pool halls than they do in billiard parlors. Visibility is better in a billiard parlor, whereas things happen more furtively in a pool hall. A stranger might be questioned in a billiard parlor, but a confrontation is more likely in a pool hall. In other words, the initial mental image dictates, or at least suggests, a variety of assumptions about the nature, context, and likelihood of events.
B. Explain the Anticipated Evidence
The legal function of an opening statement is to assist the trier of fact in understanding the evidence to be presented at trial. While we hope the evidence will be self-explanatory, even in the best-organized trials evidence is often developed in a disjointed manner.
To reduce this confusion, the courts developed the concept of the opening statement. The opening statement gives the parties the opportunity to present an overview of the case at the beginning of the trial so as to better equip the fact-finder to make sense of the evidence as it is presented. This chance to give an overview of the expected testimony, however, is not an invitation to argue about it.
The “nonargument rule” states that opening statements may only be used to inform the trier of fact of “what the evidence will show.” Thus, lawyers are restricted to offering a preview of the anticipated testimony, exhibits, and other evidence. This limitation results in a highly stylized set of rules for the presentation of opening statements, as lawyers strive to influence the fact-finder without crossing the line into prohibited argument.
C. Advocate for Your Client
Your goal in presenting an opening statement should be to use it as an opportunity to advance your theory of the case. This is not as easy nor as obvious as it may sound.
The trick is to consider the relationship between the expected evidence and the conclusions that you want the judge or jury to reach. In the fire truck case, the expected evidence is tat a fire truck approached the intersection and that the defendant did not stop his car. But that doesn’t advocate anything. It is only when the expected evidence is combined with a case theory that the opening statement becomes persuasive. Thus, using the plaintiff’s theory, the evidence hopefully will show that the defendant had ample opportunity to observe the fire truck, which was flashing its lights and sounding its siren, but that he was so rushed and distracted he did not notice it.
So long as you avoid lapsing into argumentative form you may develop your theory of the case. While you may not urge the trier of fact to reach certain conclusions, you may arrange your discussion of the facts so that the conclusions are inevitable. Many tools are available to accomplish this goal. In brief, a well-developed opening statement will take advantage of some or all of the following concepts:
Choice of facts: In every opening statement you must decide which facts to include and which to leave out. While you will obviously want to emphasize the facts that you find helpful, there is also considerable risk to telling an incomplete or illogical story.
Sequencing: The order of the facts may be as important as the nature of the facts.
Clarity of description: It is one thing to mention a fact, but it is better to describe it with sufficient detail and clarity that you engage the finder of fact in your own mental portrait.
Common sense: Common sense is used both to judge and predict outcomes. An opening statement cannot be successful if its story does not resonate with everyday experience.
A fact-finder’s reflexive resort to common sense can also be used to lead them to a desired conclusion. Consider an opening statement that begins this way: “The defendant woke up late, he had an important meeting to go to, the meeting was to be held far from his home, he skipped breakfast and went directly to his car, the defendant drove to the meeting.” Without saying more, common sense suggests that the defendant was in a hurry when he was driving.
Moral attraction An opening statement can be made more attractive when it tells a story that people want to accept. The evidence can be described in a context of shared values or civic virtues so as to add moral force to your client’s position. In the fire truck case, for example, the plaintiff’s evidence will show that the plaintiff knew that it was important not to get in the way of a fire engine, and so she stopped to let it pass.
In the final analysis, the most successful opening statements are those that explain exactly how you intend to win your case.
II. THE RULES OF OPENING STATEMENT
The rules of evidence used in your mock trial govern what evidence is admitted at trial. Since the admission of a piece of evidence is left to the discretion of the presiding judge, you may not know exactly what facts will come out at trial when you are preparing your opening statement. To complicate matters, opening statements are limited to admissible evidence. The best method, then, is to use only those facts for which you have a reasonable theory of admissibility.
In addition to limiting your opening to only the facts that you believe will be admissible at trial, there are other specific rules that set forth the manner in which you may present your opening statement. Once you understand these rules, you can begin to plan exactly what you will say. Before we address these rules, however, we will briefly summarize the techniques you should follow when delivering your opening statement.
First, if you have had weeks or even months to prepare for your mock trial, you should memorize your opening statement. When you have had less time, we recommend that you write out your opening statement and then divide it into sections. At trial, you can use an outline that lists the sections or headings. By triggering your memory section by section, you can avoid reading your opening statement. Reading is your enemy during openings since it introduces you to the fact-finder as stilted, labored, or unprepared. It also prevents you from making eye contact, picking up on the fact-finder’s reactions, moving about the courtroom and quickly responding to objections and rulings by the court. If you represent the defense, reading your opening further prevents you from replying to challenges, weaknesses, and omissions in the plaintiff’s opening statement.
Movement about the courtroom can also add considerable force to your opening statement; it can be used to make the transition from one topic to another or to emphasize a particular point. You should begin your opening statement standing directly in front of the fact-finder. Then, to signal transition, take a step or two to one side or the other whenever you change topics. By using your body in this manner you signal to the finder of fact that one subject has ended and another is about to begin. The motion, in turn, will have the effect of reinitiating primacy. The fact-finder’s attention will refocus, and you will then have a new “opening moment” in which to take advantage of their heightened concentration and retention.
Most judges will allow you to move freely about the courtroom during opening statements. Even so, you might encounter a judge who prefers that you argue your case from the podium or behind counsel table. If you are unsure about which policy the judge follows, ask her before the trial begins.
A. Do Not Argue
As we noted above, argument is improper during opening statements.
1. Defining argument
Most judges recognize that “argument” is a relative concept and allows lawyers a reasonable amount of latitude. As with many other rules we have discussed, application of this rule will vary by competition and by presiding judge.
To help you through the uncertainty involved in determining whether a statement is an argument, ask yourself the following questions:
· Am I interpreting the evidence?
· Am I urging the fact-finder to draw inferences from the facts?
· Am I explaining the importance of a certain piece of evidence or suggesting the weight it should be given in the fact-finder’s deliberations?
· Am I appealing overtly to the fact-finder’s sense of mercy or justice?
If the answer to any of these questions is or possibly could be “yes” you are probably arguing.
To illustrate to the application of our test, consider the following portions of opening statements that are based on a personal injury case:
Just before the accident the plaintiff was sitting in a bar. In less than an hour and a half he
consumed at least four shots of Everclear. He bought a round for the house and then he left.
He left in his car. The accident occurred within the next twenty minutes.
The plaintiff was obviously drunk. No person could drink four shots of Everclear in that
amount of time without feeling it. Only an alcoholic or a liar would claim to have been
sober under those circumstances.
The first examplepasses our test since the bartender will testify to the facts contained un the first three sentences and the police will verify the remainder of the information. The second example is more problematic. To begin, the drunkenness of the plaintiff is an inference lased on the lawyer’s conclusion “no person could drink four shots of Everclear” without feeling it. Calling the plaintiff “an alcoholic or a liar” is pure argument, since it characterizes the plaintiff’s behavior. Thus, the second example fails our test and is therefore improper.
2. Other considerations
In addition to the words you speak, a variety of other considerations may lead a judge to conclude that your opening statement has crossed the line into argument. A statement can be transformed into an argument simply by the way in which it is spoken, including the use of sarcasm, volume, or vocal caricature.
In addition, the use of rhetorical questions is inherently argumentative. For example, a suggestion of disbelief as in, “What could he possibly have been thinking of?” or a suggestion of incontrovertible certainty, “What other answer could there be?” Questions like these strongly signal argument when used in an opening statement.
Likewise, although an excellent persuasive device when used elsewhere in a trial, repetition an lead an opening statement into the forbidden territory of argument. Even the most innocent of facts can become provocative when repeated as many as three times, each with greater emphasis.
B. Do Not Comment on the Law
Closely related to the rule against argument is the general proscription against discussing the law at length during opening statements. The rationale is the same: opening statements are allowed for the purpose of organizing and previewing the evidence for the finder of fact, not for arguing one’s case based on the law.
Since it is virtually impossible for counsel to avoid some discussion of the law during any but the simplest opening statement, we recommend that you do so quickly and only to the extent necessary. For instance, at some point in the fire truck opening the plaintiff’s attorney will have to raise the legal concept of “due care,” if only to explain exactly how the defendant was negligent.
Remember when you do this, however, that it is never acceptable to advocate that the fact-finder follow a particular interpretation or construction of the law.
C. Weave Your Theory and Theme Into Your Trial Story
Your most important task when giving an opening statement is to tell the fact-finder your theory and theme of the case. Although you need not use these exact words, you should start each trial by saying, in effect, “This is a case about…” You can then tell the fact-finder, in a single phrase or sentence, precisely why your client should win. See Chapter 2 (“Case Preparation”) for a detailed explanation of theme and theory.
1. State your theory clearly
The most important rule concerning opening statements is to present a coherent theory of the case. You will, of course, have developed such a theory in your pretrial preparation since no case can be won without one. The challenge now is to communicate it clearly, succinctly, and persuasively.
Recall that a trial theory is the adaptation of a factual story to the legal issues of the case. Your theory must contain a simple, logical, provable account of facts which, when viewed in light of the controlling law, will lead to the conclusion that your client should win. In short, you will want to use the opening statement to explain to the trier of fact why the verdict should be in your favor.
A successful theory will be built around a persuasive story. Ideally, such a story will be told about people who have reasons for the way they act; it will explain all of the known or undeniable facts; it will be told by credible witnesses; it will be supported by details; and it will accord with common sense. Thus, your opening statement should, at some point and in some manner, address all of these statements:
What happened? Describe the crucial events in your story. The crucial events are those that speak to the legal elements of your claim or defense. For instance, if your client is charged with murder and is claiming self-defense, you will want to describe those events that led your client to believe that his life was threatened by the deceased.
Why did it happen? It is not sufficient to list the facts. A story is most persuasive when it explains why events occurred as they did, since a compelling reason for an action will tend to rule out alternatives. For example, you may state that the defendant in a collision case was driving slowly and carefully just before the accident. Even so, your explanation will be more persuasive if it is supported by the fact that the defendant was returning from an antique auction, carrying an expensive and fragile chandelier in the back seat of her car. The defendant’s reason for driving slowly not only supports her version of events, but makes less likely a claim by the plaintiff that she careened around a corner at high speed.
Which witnesses should be believed? Although it is improper to argue the credibility of witnesses in your opening statement, you may, and should, provide the trier of fact with facts that bolster your own witnesses and detract from the opposition’s. Bias, motive, prejudice, and interest in the outcome of the case are always relevant to a witness’s believability. Explain the facts that demonstrate your own witnesses’ lack of bias; include as well the facts that demonstrate the motive or interest of the opposition. For example:
Two experts will testify as to the cause of the fire. The plaintiff will call Fire Chief Barry
Roberts, who will testify that he investigated the fire as part of his normal professional
duties. Chief Roberts concluded that the fire was accidental. He was not paid by either
of the parties. He was simply doing his job. The defendant’s expert is Pam Copley.
She does not work for the city or the state; she is a private investigator. All of her income
is derived from private clients. She was hired by the defendant to reach an opinion about
the cause of the fire in this case, and she was paid $300 an hour to do so. Ms. Copley
will testify that the fire was caused by arson.
How can we be sure? As should be apparent from the example above, the persuasiveness of an opening statement, indeed the persuasiveness of virtually any aspect of a trial, is often established through the use of details. Broad assertions can stake out territory and raise issues, but the truth will be determined by the details. An essential element of an opening statement, then, is the judicious use of details in support of the accuracy, dependability, or believability of your facts.
Does it all make sense? Finally, the theory you present in opening, or at any other point in the trial, much make sense when it is measured against the everyday experiences of the fact-finder. The provisions of reasons, biases, or details, no matter how compelling they are to your way of thinking, will accomplish nothing if the judge or jury cannot place them into a context that they understand and accept.
2. Introduce your theme
Your trial theme, as distinct from your theory, should be expressed in a single sentence that captures the moral force of your case. A theme communicates to the finder of fact the reason that your client deserves to win. Thus, introducing a theme in opening is particularly effective as a persuasive matter since it can focus the fact-finder’s attention on a cognitive image that you will return to throughout the trial.
Nonetheless, using a theme in your opening statement presents some difficulty. Unlike a trial theory, a theme is intended to reflect upon or interpret the evidence rather than simply to describe or outline it. Overuse or constant repetition of your theme may bring you perilously close to argument. Most judges, however, will allow the statement of a theme at both the beginning and end of an opening statement, especially when it is phrased in terms of fact as opposed to opinion or characterization.
One of the previous themes for the plaintiff in the fire truck case is tat the defendant was “too busy to be careful.” This theme can be used at the beginning of the opening as a reference point for the information about the defendant’s course of conduct on the morning of the accident:
Ladies and gentlemen, this is a case about a driver who was too busy to be careful.
On the morning of the accident he woke up late. He had to be at an important meeting
downtown and he had less than an hour left in which to get there.
Although there is a sense in which “too busy to be careful” is a conclusion, it is used here solely as an introduction to the facts that follow. Busyness and carefulness are ordinary incidents of life that are easily recognized without questionable inferences/ Therefore, the theme “too busy to be careful” can almost certainly be invoked at the outset of the plaintiff’s opening statement.
D. Order and Contrast the Facts Persuasively
While argument is prohibited during opening statements, persuasion is not. Indeed, persuasion is unavoidable. Few of the facts outlined in an opening statement will be neutral; most facts will be favorable to one side or the other. So long as counsel refrains from suggesting conclusions to be drawn from the facts, she is free to arrange them in an order that maximizes their favorable impact. Persuasive ordering of the facts actually assists the fact-finder in understanding the case since it will then be easy to see just how the parties’ stories diverge.
The persuasive ordering of facts can be accomplished either through incremental development or through contrast. Incremental development involves the successive ordering of a series of discrete facts, each building upon the last, until the desired conclusion becomes obvious. Although the facts will be related, they need not be presented in chronological order. The following example demonstrates how the plaintiff might use incremental development in our fire truck case:
The defendant awoke at 7:00 AM. He had an important meeting scheduled with a
potential new client for 8:30 that morning. The client had not yet decided whether
to hire the defendant, but the account would have been worth a lot of money. The
meeting was to be held downtown, which was sixteen miles form the defendant’s home.
The defendant showered, shaved, dressed, but he skipped breakfast. He went to his car,
which was parked about a block away. All of this took approximately fifty minutes. By
the time the defendant got to his car it was 8:00 AM. He had thirty minutes left before the
new client was scheduled to arrive at his office.
Note that the example begins when the defendant woke up, skips ahead to the information about the scheduled meeting, and then goes back to describe the rest of the defendant’s morning routine. Other facts, of course, could be added to show how seriously late the defendant was, and therefore how likely he was to drive carelessly or too fast. The point is that the individual events build upon each other to explain, without saying so, why the defendant would have been driving negligently.
Contrast is the juxtaposition of contradictory facts, most often used in an opening statement to demonstrate the implausibility of some aspect of the opposing case. The defendant in the fire engine case might use contrast this way:
The plaintiff in this case is seeking damages for pain and suffering and lost income.
She claims a permanent disability. You will see medical bills offered into evidence
that start with the date of the accident and which continue right through to last
December 10. You will also see a receipt for the purchase of a new backpack and
camp stove, purchased by the plaintiff last August 17. She went to the doctor on
August 15, she bought her backpack on August 17, and she went camping at Eagle
River Falls on August 31. She returned to town on September 3. Her next visit to
the doctor was not until October 19.
Without resort to argument, the simple contrast between the medical bills and the camping trip casts doubt on the plaintiff’s allegation of permanent injury.
III. PLANNING YOUR OPENING STATEMENT
A great deal of thought is required to plan an effective opening statement. In addition to following the rules outlined above, use these guidelines when determining the content and organization of your opening statement.
Every good opening statement, no matter what the case, contains enough information to help you win the trial but not so much as to distract the fact-finder or risk exploitation by the other side. So, how do you know what to include? Although the content of openings will vary depending on the type of case, the following considerations are helpful in most trials.
1. Include only provable facts
Every fact that you include in your opening statement must be provable at trial. The law limits opening statements to a preview of the evidence that will be presented once the trial begins. Evidence that no witness can verify or that is inadmissible under the rules of competition is not provable.
Think of your opening as a promise to the fact-finder. By making a definitive statement about the future evidence, you have committed yourself to producing that evidence. If you do not deliver, at best you may seem to have overstated your case and at worst you may seem to have deliberately misled the fact-finder. Even if the trier of fact does not realize that there has been a gap between your opening and your proof, you can be certain that opposing counsel will point it out during final argument.
2. Include the necessary facts
The most important part of any opening statement is its treatment of the operative facts. Although there is no recipe for determining which facts are necessary in a given case, you will no doubt want to include some or all of the following:
a. The physical scene
The meaning and legal significance of events is often dependent upon their location. It is important, therefore, to use your opening statement to set the scene for the major events in your case.
b. Action and key events
Most cases revolve around one or more actions or key events. In depicting actions and events, nouns and verbs can be much more helpful than adjectives and adverbs. This may seem strange since modifiers are commonly thought to add descriptive depth. Consider, however, which of the following accounts is more evocative of the crime. First, a short paragraph that makes maximum use of adverbs and adjectives:
It was a heinous, horrible crime. The defendant’s actions were inhuman and awful.
He brutally grabbed at the victim’s gold chain, fiercely yanking it away. He left an ugly,
ugly bruise on the victim’s neck.
Now consider a paragraph with virtually no modifiers at all:
The defendant placed his knife against the victim’s body. Without waiting, he grabbed
the gold chain from the victim’s neck and wrenched it until it snapped, leaving bruiuses
on the victim’s neck that didn’t heal for over a week.
The second paragraph is more vivid because it describes the deeds as they occurred whereas the first paragraph actually short-circuits the action by substituting value-laden modifiers for an account of the events themselves.
The message here is that you should use nouns and verbs in your opening statement and limit your use of modifiers, which are frequently judgments rather than descriptions (and as such are argumentative). Words like heinous, brutal, and awful may convey the lawyer’s opinion about the nature of the crime, but they do not depict a vision of the event itself.
c. Transactions and agreements
Civil cases are likely to involve written and oral communications far more than they do physical occurrences. In many ways these non-physical events may be more difficult to describe during an opening statement since there is little or no activity to depict. Nonetheless, when a case turns on the interpretation of a document or the meaning of a series of telephone calls, counsel must search for a way to bring the transaction to life.
Transactions and agreements are brought to life by interpreting, in simple terms, what happened or was agreed upon and then filling in the necessary details. There is no need, for example, to recount every telephone conversation that went into the negotiation of a purchase order. It will usually be sufficient to delineate the terms of the order itself, supported by an account of one or two crucial conversations.
3. Include a brief reference to the other side’s case
It is always difficult to decide how much attention to give to the opposition’s case. Plaintiff’s counsel must determine whether to anticipate and respond to the expected defenses. Defendant’s counsel has to consider whether and how to react to the plaintiff’s opening.
a. Plaintiff/Prosecution opening
Unlike final arguments, there is no rebuttal in opening statements. You only get to address the fact-finder once and without the advantage of knowing what the defendant’s theory and theme will be. No matter what your opposing counsel says, you will not be able to respond directly until the end of the trial. This can be especially troublesome in cases where the defendant presents an affirmative defense. Since an affirmative defense, by definition, raises issues that go beyond the plaintiff’s own case, the plaintiff faces a delicate problem in dealing with them during the opening statement. Should the plaintiff ignore the affirmative defense, thereby foregoing the opportunity to reply to it at the outset of the trial? Or should the plaintiff respond to the defense in advance, in essence forecasting the defendant’s case? Here are some guidelines to responding to the other side’s case.
First, give primary attention to the strongest aspects of your own case. The opening statement is your opportunity to begin to capture the fact-finder’s imagination. Do not get them started imagining the things that might be wrong with your case. Accentuate the positive. To the extent possible, the defense raised by the other side should be treated as technicalities or annoyances.
Since you will know with some certainty which defenses will be raised, there is no reason to address all of the holes that the defendant might try to punch in your case. Concentrate on the most likely defenses.
Do not apologize when it comes time to discuss the opposition’s case; your tone should be firm, unapologetic, and straightforward. If you seem overly concerned or worried about a defense, it will suggest that there are indeed problems with your case.
Finally, it must be noted that the Fifth Amendment prohibits prosecutors from so much as suggesting that the defendant will testify (even if you know for a fact that he will be called). The Fifth Amendment does not, however, prevent the prosecution from reading from a confession or prior statement of the defendant so long as your case file does not contain a ruling that the statement is inadmissible.
b. Defendant’s opening
Defense lawyers can plan and outline opening statements just like their opposing counsel. But, when the time comes to present their opening, good defense attorneys are flexible in determining the final content. It is a tremendous advantage to deliver the second opening statement, and defense counsel can only take advantage of this opportunity by being ready to respond to at least some aspects of the plaintiff’s opening.
Responding to opposing counsel’s opening is not easy; you must listen carefully and pick your battles. If you are new to mock trial, stick to your prepared outline. For the more confident and experienced students, there are a few techniques you should use when responding.
First, state your denial right up front. The civil plaintiff’s opening statement, and even more so the criminal prosecutor’s, is essentially am accusation. Its entire thrust is to tell a story that accuses the defendant of negligence, breach of contract, criminal acts, or some other negative conduct. After hearing such an extended charge against the defendant, the trier of fact’s first inclination will be to ask the question, “Well, is it true?” The defendant, then, must respond with a denial. Anything short of a denial is likely to be regarded as evasion, equivocation, or worse, an admission of fault.
It is also important to respond directly to the plaintiff’s version of significant controverted evidence. Simply telling your own independent story is not sufficient since that will not allow you to explain why the facts in support of your version are superior. It is also risky to expect the trier of fact to keep the plaintiff’s opening in mind and then to appreciate the implications of the contrary facts as you reveal them. Instead, you should make it apparent that you are contradicting the plaintiff’s factual claims.
Finally, point out significant omissions in your opposing counsel’s opening statement. As all trial lawyers learn, the absence of evidence can be as telling as the evidence itself. Defense counsel should therefore be ready to respond not only to what was said in plaintiff’s opening but also to what was not said. While it would be argumentative to accuse opposing counsel of concealing information, it is perfectly proper to point out evidentiary gaps in the plaintiff’s opening statement by stating, for example, “What Plaintiff’s counsel didn’t tell you is that…”
Although adaptations based on the particular facts of your case may often be advisable, you should generally follow these steps in organizing your opening statement.
1. Begin with your theme and theory
Recalling the principle of primacy, which posits that what is heard first will be best remembered, you should begin your opening statement by getting right to the point: state your theme; explain the most important point of your theory; lay the groundwork for a crucial direct or cross examination; foreshadow your closing argument.
In the fire truck case, the plaintiff might want to open something like this:
This is a case about a defendant who was too busy to be careful. Because he failed
to stop for a fire truck, he smashed his car right into the back of the plaintiff’s automobile.
The fire truck was flashing its lights and sounding its siren. All of the other drivers noticed
the fire truck and stopped. Except the defendant. He had his mind on an important
meeting, so he kept on driving until it was too late. Now the plaintiff will never take
another step without feeling pain.
The opening on the preceding page is direct and to the point. It states plaintiff’s theory and theme right at the outset and launches immediately into the facts that support her case. The three central points that the plaintiff will make are all mentioned: (1) The fire truck was clearly visible, (2) all of the other traffic stopped, and (3) the defendant was preoccupied and caused the accident.
In considering what to include in your opening paragraph, choose the information that you hope will remain in the mind of the fact-finder when the trial is over. Ask yourself: What facts most support a verdict in my favor? What issues will be most hotly contested? Which witness will be most relied upon?
2. Introduce yourself and your client
While there is a natural inclination to begin your opening statement by introducing yourself, your co-counsel, and your client, it really is not important enough to warrant the use of your opening moment. Thus, once you give the fact-finder a short introduction of your theory and theme, you may pause and state, for example, “Good morning. My name is Georgia Brousseau and, along with my co-counsel, Richard Kluck, I represent the people of the State of Arizona.”
If you represent a specific person, now is the time to introduce him to the fact-finder as well. This is your chance to humanize your client, to give the fact-finder a chance to come to like him. Don’t point to him and announce that he is a great guy. Stand next to him, place your hand on his shoulder and introduce him like you would your own grandfather. Explain his many fine qualities. Remember that likable people are more apt to be perceived as credible. Although there is no formula for how much information you give during your introduction, it is generally a good idea to share your client’s age, marital status, educational background, occupation, and anything else relevant to your case.
If you represent the prosecution in a criminal case, it is a good idea to introduce the victim of the crime after the traditional introduction. You might continue as follows:
Ladies and gentlemen, you will hear Danielle Weeks referred to as “the victim” in this
case, “the deceased,” and even, “the body.” But remember when you hear these terms
we are really talking about a person – a person who used to be a bright, young, talented
twenty-six-year-old actress. Danielle Weeks grew up here in Tucson with her mother father,
and two brothers. Danielle was heavily involved in acting, dance, and musical theatre
classes throughout junior high and high school. Her teachers considered her to be
Introducing the victim at the outset of your case humanizes her so that the judge and jury will remember who the victim was and the gravity of the crime committed.
3. Tell the full story
Now that you have introduced your client, tell the fact-finder the story of your case.
a. Avoid the witness-by-witness approach
Recall that the very purpose of the opening statement, indeed its underlying justification, is to overcome the disjointed fashion in which the witnesses will produce evidence at trial. A witness-by-witness rendition of the facts is unlikely to produce a coherent story when the witnesses take the stand and testify for themselves. This method of organization becomes no more helpful simply because a lawyer has substituted a summary of the testimony for the actual direct and cross examinations.
Imagine that plaintiff’s counsel in the fire truck case opted for the witness-by-witness approach in her opening statement:
Ladies and gentlemen, you will hear a number of witnesses testify in this case. Let me
tell you about some of them.
Karen Trumbull will testify that on the morning of the accident she was driving south on
Craycroft. As she approached the intersection of Craycroft and Ata Vista, she saw a
fire truck approaching from the west. It was flashing its lights and sounding its siren,
so she applied her brakes and stopped her car immediately. Suddenly another car,
driven by the defendant, Mr. Hartmann, crashed into her from behind.
Michael Morales was a firefighter on Engine Number 9 on the day of the accident.
He will tell you that the weather was clear and dry that day. He will also describe the
call that his engine company received and the fact that they followed their standard
procedure when they left the firehouse – flashing their lights and sounding their siren.
The fire engine headed east on Alta Vista in the direction of Craycroft.
The drawback of this method should be readily apparent; it quickly becomes boring and hard to follow.
While the witness-by-witness approach is unlikely to result in an effective opening statement, this does not mean that individual witnesses should not be mentioned in the course of your opening. To the contrary, it is often quite important to inform the finder of fact of the source of a specific fact or the precise nature of some anticipated testimony. The key is to weave the information about the witnesses into the narrative so that the witness references arise in the context of your theory of the case.
b. Use chronology wisely
Chronology is an obvious, natural, and often useful organizing technique for opening statements. All events in the real world, after all, occur in chronological order. Moreover, we are all used to thinking of life in chronological terms. It is for this very reason, in fact, that opening statements have become part of the trial: to allow lawyers to take individual witness accounts and meld them into a single chronological narrative. Consider the following:
The weather was clear and dry on the morning of the accident. Fire Engine Company
Number 9 received a call to respond to a fire, and the crew boarded their truck and left
the firehouse, headed east on Alta Vista toward Craycraft Road. In keeping with standard
procedure, they sounded their siren and flashed their lights from the moment they left the
station. At about that same time, the plaintiff, Ms. Trumbull, was driving south on Craycraft
and the defendant, Hartmann, was driving behind her.
As Ms. Trumbull approached the intersection with Alta Vista, she saw and heard the fire
truck, so she immediately applied her brakes. She had plenty of time to stop. The
defendant, whose car was directly behind hers, didn’t stop. At one point he slammed on
his brakes, but it was too late. As hard as he hit his brakes, it did not keep him from
crashing right into the plaintiff’s car.
This story is far more cohesive than the witness-based account. It brings all of the vehicles together at the fateful intersection without the necessity of the jurors having to keep a running account of their whereabouts and it connects the fire engine’s use of lights and siren directly to the cause of the accident.
Be aware that there are drawbacks to using strict chronology in telling your story. It can encourage the use of excessive detail. For instance, the fact that the plaintiff in the fire truck case left her home five minutes before the defendant Is not worth mentioning unless it supports your theory or theme.
Chronology can also interfere with the logical exposition of your theory or theme. For instance, in the fire truck case the plaintiff’s theme is that the defendant was too rushed to be careful. The conclusion is supported by the fact that the defendant woke up late that morning as well as the fact that he called his office regarding his meeting immediately after the collision. When inserted into the story chronologically, however, these facts stand a good chance of being lost to the fact-finder since they are separated by nearly an hour worth of events. Putting these facts together would maximize their impact.
Despite the drawbacks mentioned above, the judicious use of chronology is an essential part of every opening statement. Chronological development should always be used to explain independent events. Every trial can be understood as a series of sub-events which fit together to comprise the entire story. The discussion of these sub-events is always open to arrangement by counsel. The sub-events themselves, however, have their own internal logic, which generally can be understood only when explained chronologically.
The best way, then, to organize the story you tell during your opening statement is to break the action into “chunks” which are told chronologically. Between each chunk, insert information that helps the fact-finder understand the chronological narrative. For instance, consider the question of the siren in our fire truck case. The plaintiff says there was a siren, and the defendant says there was not. Thus, plaintiff’s counsel might tell the overall story chronologically, weaving in a non-chronological “siren chunk” when it becomes relevant:
Just as she reached the intersection, the plaintiff saw and heard an approaching fire truck.
It was sounding its siren and flashing its lights. We know that the siren was operating
because Lieutenant E.J. Johnson, the driver of the fire truck, will testify that she always
sounds the siren when she is answering a call. That is fire department policy, and
Lieutenant Johnson is a decorated firefighter who has been with the department for
over ten years. Perhaps, for whatever reason, the defendant didn’t hear the siren, but
Lieutenant Johnson will testify that she is certain that she was doing her official duty –
that is, using her audio ad visual alarms – on the day when the accident occurred.
Used in this manner, the information about Lieutenant Johnson corroborates and strengthens the plaintiff’s theory of the case. It neither stands alone as an isolated description of the witness, nor does it interfere with the flow of the narrative. Rather, it adds support to the plaintiff’s theory at the precise moment when support is likely to be most readily understood.
4. Highlight the legal issues
Now that you have given the fact-finder your full story, you may want to briefly introduce the legal issues of the case. A statement of legal issues will put the significance of the facts into clear perspective. If you represent the plaintiff/prosecution, mention your burden briefly and state that you will prove that the defendant is liable/guilty:
The evidence you hear today will illustrate by a preponderance of the evidence that
the defendant was negligent – he was too busy to be careful and so he failed to notice
the fire truck and he was driving too quickly to be able to stop in time. You will see today
that his negligence caused the collision in this case.
If you represent the defendant/defense, tell the fact-finder that the other side has the burden of proof and that they will not meet that burden:
The plaintiff has the burden of proof in this case. They must prove by a preponderance
of the evidence that the defendant was negligent. The evidence will show that the plaintiff’s
request for damages is unreasonable and, more importantly, that the defendant was not
the cause of this collision.
5. Request a verdict
Your opening statement should almost always conclude with a request for, or explanation of, the verdict that you will seek at the end of the trial. This request should be made in general terms: “At the end of the case we will ask you to return a verdict that the defendant was nt guilty of negligence.”
Even if your mock trial competition rules allow objections during opening statements (some do not), they are a fairly unusual occurrence. In jury trials the objecting attorney risks seeming rude by interrupting opposing counsel’s address to the members of the jury. In bench trials objections are even more likely to be met with annoyance. For these reasons, most attorneys try to avoid objecting during opposing counsel’s opening. There are times, however, when objections are called for and should be made.
A. Raising objections
The most common objection during an opening statement is to improper argument. Most judges will sustain this objection only when the argument is extended or over-the-top. An argumentative sentence or two is not likely to draw an objection and even less likely to be sustained. Drawn out argument, however, is more vulnerable to both.
It is also objectionable to argue the law during opening statements. While some brief mention of the applicable law is unavoidable, lengthy discourse on the law, ad especially misstatement of the law, should draw an objection.
While opening statements are required to preview only the evidence that will ultimately come before the trier of fact, objections usually will not be sustained on the ground that counsel is discussing inadmissible evidence. A lawyer in entitled to take a chance that her evidence will be admitted, and most judges will not rule on evidentiary objections during the opening statements.
Finally, it is worth noting that there is no such objection as, “That is not what the evidence will be.” Opposing counsel presents her case and you present yours. You will naturally disagree as to what the evidence will show. If counsel ultimately fails to live up to the commitments given during her opening statement, then you can and should pound that point home during your final argument. For the same reason, there is also no such objection as, “mischaracterizing the evidence.” If a characterization amounts to argument, object to it. Otherwise, opposing counsel is free to put whatever spin she can on the evidence.
B. Responding to objections
An objection to your opening statement can be distracting. Offering a lengthy argument in response to an objection, however, can be even more disruptive. The best method of handling objections during opening statements is simply to stand still (facing the jury or judge) while the objection is made and argued. Turn and respond to the objection only if the judge asks you to, amd then keep your argument brief.
The best response to an :argumentative” objection is to simply respond that a witness (or several witnesses) will testify to the specific facts during the trial. For instance, say plaintiff’s counsel stated during the fire truck case that, “You will learn that the defendant’s first concern after the accident was his meeting and not the health of the plaintiff.” If defense counsel objects to that statement as argument, the plaintiff should respond with a proffer to the judge telling her that the testimony will verify that fact. Counsel might say, “Your Honor, two witnesses will testify that immediately after the accident the defendant called his office on his cellular phone before he checked on the plaintiff.
If the objection is overruled, simply pick up where you left off. If the objection is sustained, you must adapt your opening to the court’s ruling.
Consider, for instance, what you would do if your theme “too busy to be careful” Is found to be improper argument by the presiding judge. Do not ask for reconsideration or try to explain why you were not being argumentative. A small adjustment to your opening is sufficient:
The evidence will show that the defendant was extremely busy and not careful on the
morning of the accident. He was busy because he had an important meeting scheduled
with a new client. He was running late for the meeting, and he wanted to get there on time.
We know that he wasn’t careful because he kept on driving when all of the other traffic
stopped for a fire truck. The truck was flashing its lights ad sounding its siren, but the
defendant didn’t notice it until it was too late.
COLORADO MOCK TRIAL RULE REGARDING OPENING STATEMENT OBJECTIONS:
Rule 6.6.2 Opening Statement or Closing Argument Objections
No objections shall be raise during opening statements or during closing arguments.
If a team believes that an objection would have been proper during the opposing teams’
opening statement or closing argument, the team member presenting the same segment
of the trial may, following opening statement or closing argument, stand to be recognized
by the presiding judge and once recognized, state, “If I had been permitted to object during
the [opening statement/closing argument] I would have objected to ________________ .”
The presiding judge will not rule on this “objection.” The presiding judge and scoring
panelists will weigh the “objection” individually. No rebuttal by the opposing team will be