“Mastering Trial Skills” – Nationwide Tour Championship, David H. Marsh

Nationwide Tour Championship

David H. Marsh
Birmingham, Alabama

October 31, 2003
The Legends at Capitol Hill
Prattville, Alabama

I. Introduction

In truth, the opening statement is probably the most important stage of the trial, especially if you represent the plaintiff. An effective opening statement can and will persuade the jury. It should be your goal to persuade during opening statement. There is nothing wrong with this. This persuasion can occur within the bounds of ethics and within the particular fact situation involved. Importance of the first impression cannot be overstated. It is a fact that human beings usually believe that which they have heard first about a given subject. Studies have shown that 80 percent of jurors make up their mind during opening statement. Therefore, the time provided for opening statement should not be wasted. Start strong. Your purpose should be to persuade from the beginning.

II. The Purpose Of Opening Statement

While there are many goals that we wish to accomplish during opening statement, the following are the most important:

  1. It should be your primary goal to persuade the jury.
    1. Be creative at the beginning of your opening statement
    2. Be creative with the use of statistics, learned treatises, and visuals.
  2. Establish a theme. You should establish the theme of your case in opening statement and build upon that theme during the trial. If your case involves simple carelessness or negligence by a defendant, your damage theme should be that of compensation as opposed to punishment. On the other hand, if your case involves reckless or wanton conduct, but small damages, your theme should be one of punishment or, even better, prevention.
  3. Tell the jury in clear and concise terminology what the case is about and what you’re asking them to do.
  4. “Take away” the defendant’s bombshells. Plaintiff’s attorney should openly discuss the defenses that have been put forth by the defendant. He or she should also discuss any weaknesses or problem areas in the case and the plaintiff’s answers to those weaknesses. This will minimize the effect of opposing counsel’s opening statement- when he talks about the weaknesses in the case the jury has already heard it. Also, plaintiff’s counsel will begin to establish credibility by being open with the jury.
  5. Establish credibility. The jury must feel like they can believe you before they will vote for your client. Credibility is established in many ways.
    1. Demeanor.
    2. Never overstate.
    3. Never exaggerate.
    4. Explain or minimize weaknesses.
  6. Your opening statement should serve as an outline or foundation for closing argument.
  7. The opening statement should serve as the attorney’s promise to the jury and begin a bonding process to be capitalized on during closing argument.

III. Discussing Damages During Opening Statement

Some believe that it is a mistake to discuss damages during opening statement. Almost every opening statement outline provided to trial advocacy students in law school places the discussion of damages at the end and minimizes its importance. Of course, an attorney cannot make damages a central theme of the case if the damages are slight. However, if significant and real damages are involved, they should be discussed in great detail during opening statement – as much as allowed.

  1. Discuss the amount of the prayer or a range with the jury during opening statement. How often are you asked: “How much did you sue for?”
  2. Do not hesitate to discuss injuries that are significant and supportable.
  3. Chart all items and elements of damages for effective use.
  4. The “specials” approach should be rejected by the trial lawyer.

IV. Practical Suggestions

  1. Keep your promise.
  2. Do not “hold back”. Some fine trial attorneys feel that certain strong evidence or surprise evidence should be “held back” during the opening statement and allowed to unfold for the first time during the trial. This is usually a mistake. Remember, the jury will be most receptive and attentive during the opening statement. Do not waste this time! If you have strong evidence or “smoking guns” tell the jury about it during opening statement. Remember the concepts of primacy and recency.
  3. Use demonstrative evidence. It is often said that a picture is worth a thousand words. Effective visual aids, models, and Power Point should be used during opening statement, especially in highly technical and/or product liability cases. Also, if discovery has produced damaging documents from the defendant’s own files, these should be enlarged and shown to the jury if allowed.
  4. Organize your argument. While it is not a good idea to use extensive notes during opening statement, the content of the opening statement should be well thought out and organized. It may be a good idea to write down one or two word descriptions of the areas that you wish to cover on a note pad and place that pad on an adjacent table for casual reference. It is impossible to accomplish the necessary goals of opening statement without having an organized presentation. Remember, your goals are to establish a theme, persuade, explain what the case is about, address and discuss weaknesses and defenses, establish credibility, and make a promise to begin the bonding process. Little or none of this will be accomplished through a haphazard, poorly organized opening statement. Consider the opening statement to be the most important stage of the trial and spend the time necessary to properly organize the statement.
  5. Make the jury feel special. A portion of the opening statement should be used to convince the jury that they are special and that they will be deciding a case of significance. If internal documents that are subject to a protective order will be placed into evidence, the jury should be advised of this. For example, you may wish to tell the jury that their eyes will be the first and only eyes to see certain confidential documents that have been hidden away in the defendant’s confidential files for years and years.
  6. Simplify your case.
  7. Never try the entire case on one issue (unless you cannot lose the issue and have no other choice).
  8. Keep summation in mind when presenting the opening statement.
  9. Explain how the case got to court, what a deposition is, and how you can be so confident about the evidence.
  10. Admit evidence that will be harmful. If there are contradictions in the evidence that are not relevant to the outcome, this should be explained and described as smoke screens or red herrings.
  11. If multiple defendants are involved, let the jurors know of any finger pointing between the defendants.
  12. Do not try to be funny.
  13. Do not exaggerate your case or overstate facts.
  14. Do not go through the testimony of each and every witness – hit highlights.
  15. Use your own style but do so with credibility.
  16. Be sincere and trustworthy.
  17. If rebuttal is allowed-how to handle.
  18. If technical and boring testimony will be introduced, tell the jury why it is necessary to do so and what to expect. Example – Depositions.
  19. Do not ramble.
  20. Tell the judge what demonstrative evidence you plan to use in opening statement. Nothing can be more disruptive or have an adverse effect on integrity and credibility than being interrupted by the judge and reprimanded during opening statement.
  21. Know your judge. Take steps to determine what perimeters a given judge will place on your opening statement.
  22. Do not use clichés or law school trial advocacy phrases. We have all heard them. Examples are, what I tell you “is not evidence, ” or “listen to all of the evidence before you make a decision,” or “I want to thank you in advance for your time that you have taken to serve on this jury,” etc. Hopefully, the opposition will use all of these, and more, during opening statement.
  23. If you are uncertain about the content of certain testimony, be flexible and do not paint yourself into a corner.
  24. The method of delivery should be considered. The jury will not necessarily believe the one who speaks the loudest. Understatement is often the most effective tool of persuasion. Also, silence produced by way of dramatic pauses can have greater impact than words. In other words, be yourself but consider the effect of sincerity, eye contact, understatement, dramatic pauses, etc., as opposed to shouting and fist banging.
  25. Do not be afraid to discuss empathy for the defendant. Example – corporations, witnesses who were themselves victims; or individual defendant.