Can Your Opening Statement Be Used against You?
A few years ago in a small county in eastern Alabama where there lies a notorious stock car superspeedway, we were trying a case. Our truck driver had been traveling behind a school bus, when the bus stopped at a set of railroad tracks. Our driver also stopped. The bus started forward again, then immediately stopped at a second set of railroad tracks. The truck driver did not stop this time. He had forgotten about the second set of tracks.
Several years later, some of the children riding the bus filed suit against the driver and trucking company. We did discovery, took depositions, and ultimately concluded the children’s claims for injuries were baseless. Regardless, there’s always some risk at trial, so our client made some settlement offers. We were never able to reach an agreement, so the parties prepared for trial.
After we selected the jury (during this process, one of the jurors got up to walk out of the courtroom, informing the judge he had to pee), I was tasked with delivering our opening statement. We were taking the somewhat risky position that neither were we negligent, nor were any of the kids actually hurt. There were several ways this could go wrong if the jury didn’t buy our arguments.
A Clever Opening Statement
I needed to convince the jury our driver had not breached a duty, but rather he had competing duties – he had a duty to keep a proper lookout for other vehicles on the roadway, but he also had a duty to make sure his tractor and 53′ trailer cleared the railroad tracks because it’s illegal for a tractor-trailer to stop on the tracks. I had noticed the our courtroom had markers on the walls denoting every ten feet starting at the back of the courtroom.
So during my opening statement, I walked to the back of the courtroom. I then began walking slowly back toward the jury telling them as I went all the things our driver had a duty to do and was doing as he started moving from his stopped position at the railroad tracks. He was checking his instrument clusters, watching the tracks in both directions for oncoming trains, using his mirror to determine whether he had cleared the tracks. It seemed pretty convincing, and I felt like it was a clever illustration.
Until closing arguments. During his closing argument, opposing counsel walked off that same distant to illustrate how much time and distance the truck driver had to notice the big yellow school bus stopped in front of him. This also seemed to be convincing. I realized then I needed to consider more thoroughly how my opening statement may be able to used against me at other points of trial.
Make sure to deliver on evidence you promise to the jury
I was talking with another lawyer about opening statements, and here’s what he had to say on the topic:
Opening statements can definitely come back to bite you, in a couple of ways. One is if you go first – plaintiff or prosecutor (in Kentucky, anyway) – because the other side has the benefit of hearing yours, and a savvy opposing can turn your words against you or counter what you say. The other is if something you promise in your opening statements doesn’t actually happen in trial – because of unexpected changing testimony, or an adverse ruling, or whatever. Then, opposing counsel can beat you up on it in closing – “Remember this morning, when the prosecution promised you you’d hear from X? But you didn’t, did you? Why do you think that is?”
Here are a couple things to consider when crafting your opening statement to make sure that it doesn’t come back to bite you: (1) don’t promise evidence you can’t deliver, and (2) there’s a flip side to most every illustration. Consider carefully what you say in your opening statement to make sure it provides a roadmap for the jury, gives them a compelling story, and does not give ammunition to your opponent.
And in case your wondering how my trial ended up, we got defense verdicts on three of the four kids, meaning the jury didn’t buy our liability arguments but neither did they think those other kids were injured in the wreck.