One of the more dramatic parts of a trial is the opening statement. Lawyers for each side give a speech to the judge or jury, explaining what the case is about and why they think they will win. But opening statements are usually not like how they are in television and movies. They are not off-the-cuff ruminations about life and justice. They are usually a technical summary of the evidence with a very small amount of flair.

Why should you read this post about opening statements?

  • You thought this would be this blog’s first post, and was surprised it wasn’t.

  • You want to know why opening statements aren’t given off the cuff.

  • The trial you’re in starts in five minutes and you’re scrambling for insight on what to say.

Image credit: https://en.wikipedia.org/wiki/Opening_statement#/media/File:Opening-statement-legalman-mock-trial-Dec-23-08.jpg

A Preview of the Evidence

An opening statement is rarely a speech about justice. It is usually a preview of the evidence that each side will present. Lawyers do not have many opportunities to explain the relevance of evidence they submit, and so an opening statement serves that purpose.

This is important because the presentation of evidence at trial may not have a natural flow or context. Some witnesses only have incomplete knowledge. The first witness may discuss events from 2020-2022 but also a little bit of 2018. The next witness may only discuss 2019. And the order of witnesses may be determined by the witnesses’ schedules, not necessarily a logical order. The presentation of exhibits may also not make sense to a jury without being told why they are looking at something.

An opening statement allows each side to say what the case is about and what evidence will support the claims and defenses.

Many lawyers use demonstratives in their opening statement to help present a theme or organize complex concepts. They may also use them to highlight important evidence that the judge or jury will later see.

No Argumentation

Technically, an opening statement is not the place for argument. Technically, at the opening argument stage, the judge or jury has not seen evidence yet, and so a lawyer cannot ask the fact finder to interpret the evidence a certain way.

Therefore, an opening statement may not be able to criticize witnesses’s credibility or explain why a jury should assess the weight of evidence a certain way. This means that the opening statement is a lot less powerful than one may expect from a lawyer. Instead, it is just a preview of the evidence to follow.

Lawyers often try to do as much as possible without crossing the line into argument. They may say that the evidence supports their claims or present the evidence in a compelling way. And they may introduce themes that help the fact finder view the evidence in a way that leads them to the conclusion the lawyer wants.

Also, since the opening statement is limited to evidence that the judge or jury will see, a lawyer cannot use the statement to offer anything outside the evidence. The lawyer cannot say “this is the worst case I have seen in all of my years of practice” or “I don’t think this evidence is persuasive” or offer anything that isn’t admissible evidence.

Setting the Right Tone

A major challenge in an opening statement is setting the right tone. The lawyer should earn the fact finder’s trust and seem credible, since he or she is asking the jury to see the case the same way that they do. Doing this requires some confidence, but not too much confidence that the jury is put off. The lawyer must also explain the facts, but not go so far into detail that the statement is dry or boring.

Many lawyers begin their statements to a jury by thanking the jury, who likely have other places they would rather be. This breaks the ice and earns goodwill with the jury.

Lawyers may couple the flattery with an appeal to the jury to take the case seriously. Many people go to jury duty thinking they will decide a serious criminal matter, and so they may be surprised to see a business or commercial dispute. And jurors who are not wealthy may be frustrated to be asked to help a disputes between wealthy business people. And so a lawyer may tell the jury how important the case is to the parties and how greatly everyone appreciates them taking the case seriously. This may convince the jury to pay close attention and give serious thought before rendering a decision.

Lawyers may also try to contrast themselves against opposing counsel. A judge or fact finder will often see opening statements from the plaintiff and defense counsel. If one seems very quiet or very boring or very unreasonable, the opposing lawyer may try to emphasize in the style of their presentation how different they are in an attempt to make their side of the case seem better to the fact finder.