If voir dire is important because it’s the first opportunity the jury has to get to know you, opening statements are important because they are your first opportunity to tell the jury what your case is about. If you do it effectively, you can clue the jury in on the important facts and evidence while capturing their attention. But if you’re ineffective? Well, you will set the tone for a boring experience and lose a valuable chance to enable the jury to connect with your client.
Today, we are going to look at three practical considerations as you are working on your opening statement in trial prep.[This is an excerpt from Stop Putting Out Fires: Building a More Efficient and Profitable Law Practice]
Whether opening statements should be written out or extemporaneous
On the Merits of Outlining
Before going to law school, I taught high school for six years. In the education realm, there is a lot of emphasis placed on daily lesson plans and writing out goals and objectives. At the time, I didn’t find a lot of value in those things, but over the years having written goals have become increasingly important to me, and I’ve found that shooting from the hip can have its limitations.
When I’m preparing for trial, I usually outline what I want to talk about or just bullet-point certain lines that I want to make sure to say. There’s a lot of time and energy that goes into it, but on paper, it doesn’t usually look like much. I don’t get stage fright – years of teaching high schoolers will make you hardened to such things – so I’m not usually in an really danger of all my thoughts fleeing from me.
In the example below, my opening was going to be pretty short. I wanted to capture the jury’s attention with my brevity and signal to them there wasn’t much to this case, but I’ll get into that in more detail in the next part of this series, Using Opening Statements as a Roadmap for Trial.
Thank them for their service and willingness to come participate in this very important process.
This is a case where we are in agreement on everything except one issue: money.
There is no dispute about the accident – Mr. Plaintiff was not at fault for the accident. A lady named Ms. Tortfeasor was at fault.
There is no dispute about Mr. Plaintiff’s medical treatment. He went to the ER shortly after the accident to get checked out. After they checked him out, they released on the same day.
No dispute that he had a pre-existing back injury and leg pain before this accident that had nothing to do with this accident.
No dispute that Plaintiff is entitled to something for the discomfort he endured after the accident.
We just can’t agree on how much the plaintiff is entitled to. That’s what we need you all for.
I expect that once you have heard the testimony, you’ll find that Plaintiff has not had treatment for injuries related to this accident in over 2 years.
The only treatment he continues to receive is for the arthritis, back pain, and leg pain that he had before this accident. He is taking the same pain medication and anti-anxiety medications that he took before this accident.
Plaintiff is riding motorcycles again like he was before the accident. He’s wearing the same helmet and gloves he was wearing on the day this accident occurred.
I’m confident that after you’ve heard the testimony and once you consider the evidence, you will come to a consensus and will render a just, reasonable.
A well-planned and written out opening statement
But for my most recent trial, I wanted to try something different. I wrote out the entire opening in paragraph form as if I were writing a story. I figured I would then reduce it to my usual outline before trial, because the paragraph format was too dense and lengthy for me to take up to the lectern. I enjoyed writing everything out in long form, and it made me even more comfortable with the material than just outlining or bulleting everything. Here’s what that looked like for me:
I have a rambunctious 3-year-old son. He is all energy all the time. Whenever we go into a nice store with breakable things, the owner eyes us from behind the counter, and I’m holding my breath the whole time we’re in there. I always kneel down in front of Jack and tell him, “Look at me. You have to be super careful in here. Because if you break something, you have to buy it.” And that’s fair. We’ve all heard that before – you break it you buy it. That’s the way it should be?
But what if Jack and I went into a Hallmark store and all their nice ceramic things were already lying in the floor broken? Should we have to buy the things that someone else broke? No, of course not.
Or what if someone comes in after Jack and I leave and they break one of those “My Precious Moments” or Kim Anderson figurines? Then the store owner calls me to tell me I need to pay for something that someone who came after me broke? I’ll probably tell him to get lost. Because that’s not right. You should pay for the things you break. You shouldn’t have to pay for the things other people break.
But that’s what the Plaintiff is asking you, the jury, for. The Plaintiff is asking you to make my client pay for things she didn’t break.
We don’t dispute that my client ran into the back of the Plaintiff’s truck. I expect the evidence is going to show that it had been raining that day. She was on her way home from work. As she approached a rise in the road, she checked the clock on her dash. My clientcame over the hill and when she saw the brake lights of the Plaintiff’s vehicle, she applied her brakes. The brakes locked and her tires slid on the wet road and she slid into the back of the Plaintiff’s vehicle.
You’re going to hear the Plaintiff tell you that she initially had some neck and back pain from this accident, but that went away. She’ll tell you that she has arthritis in her neck and back, and she has back and neck pain sometimes.
I expect the Plaintiff is going to tell you the only real lasting injury from this accident is a rotator cuff tear in her right shoulder. And there’s no dispute that she has been diagnosed with a rotator cuff tear in her shoulder. But you’re not going to hear undisputed evidence that happened in this accident.
During her deposition, Plaintiff testified that before this accident, she had NEVER had any right shoulder problems and hadn’t had any treatment on her right shoulder before this accident. But the evidence is going to tell a different tale. The evidence is going to show that Plaintiff was involved in car wrecks in 2005, 2012, 2013, and 2014.
The evidence is going to show that from 2005 up to the time of this accident in February 2015, the Plaintiff treated at 5 different places for her shoulder. In February 2014, 1 year before this accident, she told her doctor she had constant pain in her shoulder for 7-8 years from falls and car wrecks.
The evidence is also going to show that 4 months after this wreck the Plaintiff had a fall where she hurt her right shoulder and went to the ER. And it wasn’t until 1 month later that she got an MRI and was diagnosed with a rotator cuff tear.
Ladies and gentlemen, you have an important job. You have to listen to the evidence and decide which facts you believe are true. And as a part of that, you have to decide if the Plaintiff is trying to make my client pay for things my client didn’t break.
There are other ways to prepare as well. One of my partners likes to make an outline and practice her delivery to several audiences, usually another lawyer, her staff, and her spouse. This allows her to work out all the kinks in her opening statement and get comfortable with what she wants to say.
A LawyerSmack discussion about how to prepare for opening statements:
Alan: I’ve done it both ways, written out and extemporaneous (from an outline).
Bret: I would write it out absolutely, but memorize it enough to where it appears extemporaneous
Alan: I actually prefer the written out and memorized because it will change extemporaneously
Bret: Shooting from the hip sounds like a very bad idea, even from defense perspective, because of the possibility of being sidetracked by what the other guy said.
Joe: I always exert a level of prep for themes but never write it out. I’m big on improv. Even jury selection can impact the tenor to your opening so I try to tailor to the jury in front of me.
Mark: Echo the above. I scribble an outline of an opening in the five minutes to an hour between jury selection and openings, just because writing helps me remember. But I don’t take anything written up with me.
Nathan: For my bench district court trials (which tend to be auto and slip-and-fall defense) I don’t write out an opening beyond some bullet points and base my response off of Plaintiff’s opening. For larger civil trials I tend to have presentation/PowerPoint done with specific points, imaging, experts we might hear from, witnesses, etc. Nothing scripted but at least specific points. I do try to tailor emphasis of certain things or add/remove post jury selection based on how I think they will respond, however.
Joe: That’s all great input. Because of that I also really don’t emphasize my openings. Personally, I don’t see as much value. My real value is first in jury selection. You’re previewing issues with your people in a very real and personal way. I reference selection in my opening and closings. But opening is a rough preview of the evidence.
Robert: I’m in a different boat, as I’ve never given an opening. I have, however, seen them from a clerk’s perspective and a paralegal in the gallery who had to watch the jurors. What I think works is simplicity and tone. There are times when you need the PowerPoint – everyone does them in asbestos because no one knows what it is. But you don’t need to tell them everything up front. You just need to build investment and interest.
Kate: My trial experience is fairly limited since I’m still a baby lawyer – so far only bench trials and trial team. However, from that, here’s my insight: I think notes are important but not to be glued to them. There’s a fine balance between not memorizing the full open but not being glued to your notes the whole time (because you disconnect from the jury and cannot read/react to them). Also, body language and positioning are V important from a human interest/psych perspective. Wandering around the room is distracting, but so is firmly planting and standing still (unless at a podium and even then, try to move a bit). I use my position for sign posts. Stand here whenever I talk about X event, stand there for Y event…. it helps for people who are visual learners to make and keep the connection and remember the facts.
Adrian: I look at a trial like a filmmaker who was hired to write a screenplay based on a book. The opening statement is the most deliberate part of the whole trial. I can’t imagine not writing it out. It does set the tone, but it also is about an introduction to the jury of your clients, and their case. Presumably, you have already picked the “story” out that you want to tell. You can’t gloss over the facts, you need to present the jury with something that will keep them engaged, but not stretch the truth. Kind, deliberate, and professional.
As you can see, every lawyer is going to approach preparing for opening statements a little bit differently. No way is absolutely right, (although there might be some ways that are definitely wrong). You have to figure out what works best for you and allows you to be most comfortable in front of the jury. And even after you have refined your processes, it is important to implement After Action Reviews and perform internal audits to make sure things are working as well as you think (and if not, not determine what changes to make).
Photo by Will Scullin.