Elsewhere on this website, we provide example opening statements in our cases (and from defense lawyers) and tips for giving a quality opening statement. Below are frequently asked questions on the philosophies our firm employs when giving an opening statement. We have borrowed liberally from many sources in adopting our core opening statement principles. But a lion’s share of our thinking has been adopted from David Ball and Don Keenan.
What are the most common mistakes lawyers make in an opening statement?
The most common mistake lawyers make in opening statements is premature advocacy. You need to prove your “I’m credible and not just an advocate who will say anything” bona fides with the jury. Start off giving the facts and try to keep the focus, if at all possible, on the facts that are not in dispute.
Another other common mistake, particularly in moot court, is not presenting yourself as a human being to the jury. If you sound like you are reading off of note cards (or worse, are reading off of note cards), your presentation loses credibility and is far less compelling to watch. Don’t be informal with the jurors. Please do not lay it on too thick by being overly dramatic. Talk to them like you were having coffee with strangers (or you were on a first date).
Also, do not start your presentation by sucking up to the jury and telling them how grateful you are that they are there and how appreciative you are of their service. You can drive-by that in the middle of your closing. But, jurors do not want to hear how grateful you are to them and, more often than not, it comes off as artificially solicitous. What jurors want is for you to get the point and not waste words on anything that is not concisely conveying what they need to know.
When can you start telling your side of the story?
You want the facts to tell your side of the story long before you get into advocacy. You do not begin open advocacy until you have told the entire story of what happened.
Should you use demonstrative exhibits or PowerPoint?
Absolutely. Americans today are used to getting their facts in pretty and entertaining packages; and an opening statement should do that as well. Instead of reading the key testimony, put it on an exhibit or play the clip of the deposition to the jury. The more different types of methods that reasonably convey the information, the better. Good presentations also make you look prepared and underscore to the jury that you took the case seriously and they should too.
A word of caution on PowerPoint. While a great weapon in the presentation arsenal, make sure your presentation is not you presenting bullet points for the jury as they follow along. It takes the punch out of your presentation and puts the jury to sleep. Focus on pictures, testimony, and other things that will connect your story to the jury.
How much time should be spent talking about damages?
Few plaintiffs’ lawyers spend enough time talking about damages in their opening or in their case. Not only do you need to keep the focus on the harm that was caused by this mistake; but, you need to make sure the jury has a clear picture of what the plaintiff was like before the incident.
Should I tell a joke to break the tension?
Have you ever performed live standup? Has someone told you today that it is a tragedy that you never pursued a career as a comedian? If the answer to either of these questions is no, then you are running a real risk by making planned jokes with the jury, particularly early in a trial when the jury has not gotten comfortable with anyone. Even if you defy the odds and everyone thinks your joke is hysterical, it is hard to see how that advances the ball in your case.
Should you get your weaknesses out there?
For a while, there was a theory bandied around that you should just go on the offensive in the opening. You get your good facts out there and let them respond. (Somehow, Donald Trump’s victory seems to strengthen this argument.) But, with reason, not many lawyers are doing this. It is hard to argue that you should let the defense lawyer break the news of the facts that are harmful to your case. Ignoring weakness and letting the defense lawyer spring it on the jury is a blow to your credibility and you lose your ability to filter those bad facts through a different lens. Explain to the jury how you considered these issues before bringing this case to them and how these concerns were resolved.
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