Do’s and Don’ts for an Opening Statement at Trial

As trials resume in earnest following the COVID-19 pandemic (and the subsequent variants that followed, i.e., Omnicron, Alpha and Delta that halted trials), it is good to polish up one’s trial skills.

The opening statement is often regarded as the most important part of any trial.  It is when the jury first is told what the case is about in detail and gets a chance to evaluate the attorneys involved.  Some say that 90% of the jurors make up their minds on the verdict based on the opening statement.

This is because jurors are eager to evaluate which attorney is more confident in the case, which attorney seems more credible and which attorney is trustworthy. 

Some attorneys regard the opening statement as an opportunity to entertain the jurors and win their trust or make them like the attorney personally.  My father, who tried more than 100 cases to a jury, had an opening statement that I personally have chosen not to mimic.  He would approach the lectern and stand in front of the jury, looking them over slowly.  He would tell them he is nervous and how that particular trial has made him lose sleep for weeks.

He would then hold his papers as if looking at them one last time before starting his statement.  He would then drop his papers, pretending that it was inadvertent and, in a panic, try to pick them up and reassemble them in order.  He would pretend to be frustrated and rattled.  

Every juror would be amused or curious to see how he would recover from such an unfortunate mistake.

The truth was that none of the papers, with handwriting all over, including post its attached and yellow high lighter markings, were the same papers he used in every trial.  They had nothing to do with the case, but they looked like the work of a person who had prepared intensely.

My dad would then “give up” trying to reorganize his papers and then give an opening statement as if relying upon memory for the first time and as if being forced to do so as a last option. 

The truth was is that this opening statement was carefully prepared and memorized in many parts.  It was usually detailed and delivered without using any papers.  Jurors were usually impressed and my dad’s credibility and likeability was maximized.

I have not adopted such a stunt for my opening statements, as I think such a method is a bit too clever and, if discovered as intended, would ruin one’s credibility with the jury and judge.

Instead, I present a more traditional opening statement that I believe jurors expect.  I immediately jump into the facts and demonstrates that my client’s position relies on evidence, not personality or whether my client is the underdog. 

I follow the advice of Dan L. Stanford, a civil litigator, who recommends to avoid the phrase, “The evidence will show . . .” over and over when describing the facts.  It is odd to jurors, so much so that the use of the phrase distracts them from what I am trying to communicate.  If opposing counsel objects to what I am saying, I will correct myself and use the phrase “The evidence will show . . . “ a few times and then I stop using it.  Counsel may object again and I will correct myself, but opposing counsel is just causing himself or herself to look obstreperous and academic.  I will then continue without using the prefacing phrase “The evidence will show . . . “ and counsel will usually stop objecting.  This is a win of sorts.

My opening statement must explain the reasons for why jurors should rule in my client’s favor, but not in an emotional way.  I try to talk about accountability, fair play and what makes senses, which I think jurors feel comfortable applying.

I do not start my opening statement telling them that an opening statement is a road map and what I am telling them is not evidence, or that trial is like a puzzle where each piece if fit together slowly but surely.  Using such metaphors really only shows the jury that I can use metaphors.  Jurors want facts or evidence to think about as soon as possible and the opening statement is when to give it.

I do not lecture the jurors on what the law states or what the Evidence Code wording may be as applied to the case because doing so can be interpreted by a juror as arrogant or condescending.  It is far better, I think, to just explain or describe why something should be viewed as reliable or accurate or legal without citing to a code section.

After describing the facts of the case to the jury to satisfy this hunger they have for that, it is important to end the opening statement with just a bit of entertainment or drama that shows the attorney has that skill.  It builds credibility above the facts of the case and can cause the jurors to “like” you because they do want to be entertained at trial, but only after the facts are given consideration.

The ending of any opening statement can be when I tell the jurors that they should find my client not guilty based on the facts.  It is important to state this clearly, so they know I know the result wanted.

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