Opening Statement - Strategies, tactics, and tips on how to make an effective opening statement.

all right hello i'm mark curry a retired trial court judge with more than 34 years of total courtroom experience in this video i'm going to be talking about the opening statement which is

right at the beginning of a trial and it's a first opportunity for either the jury or the court to really hear your explanation of what the facts and the evidence are going to prove in this video i'm going to be talking

about some strategies and techniques you might want to consider so the importance of the opening statement as well as some of my own trial tips on what i feel makes an effective opening statement let's get

started before i begin i just want to give my usual disclaimer and caution about how to use this video so this video and the contents is a summary from a

handbook i've written called the practical trial handbook so it's an over overview of the basic rules and strategies procedures related to trial practice in that regard i'm not giving

any type of legal advice further the rules of evidence that i cite or the law you need to confirm that it is the current rules of evidence or law in your own jurisdiction and lastly

the strategies and tactics that i talk about my trial tips are simply my own opinions about what i think makes an effective trial lawyer and other attorneys or judges may disagree and

have their own viewpoints so keep that all in mind as you're listening to this video all right let's talk about the opening statement now the opening statement whether it's a bench trial for the judge

or a jury is the first time that the fact finder will really hurt much of the detail about the stat about the case if it's a

jury trial perhaps during board ire or introductions made at the beginning of the trial the jurors might know a little bit about the case but really the opening statement is where you're going to get into the meat of it and they're

going to start hearing a lot of facts and evidence and what the theories of the case are so i want to talk a little bit about the importance of it obviously the one of the main reasons it's

important is that it's one of first impressions there's been some jury studies out there and you can find them online or you can find the site in my handbook that suggests that as many as 80 percent of

the jurors have already begun to make up their minds after the opening statement so that's why it's so critical that you make one and you make a good one and it's thorough and comprehensive

one of the trial tips first ones i have regarding the opening statement in that regard therefore is that the jurors initial impressions of the evidence following the opening statement is critical whether right or wrong their

initial impressions may last throughout the entire trial do not shortchange the opening statement even in a court trial or a bench trial so now i want to talk a little bit about making an opening

statement in the bench charles as a judge i presided over many court trials where i'm the fact finder i make the decisions and a lot of times the attorneys sometimes they opted not to make an

opening statement or they made an abbreviated one which is fine but if you agree to if you if you're gonna do that make sure the judge is fully on board that he understand he or she has read

the trial briefs and is fully conversant with your case if there's any doubt make an opening statement even in a bench trial or i want to go over a little bit about some of the procedures in the in a

opening statement some of which you may already know but some judges do put time limitations on the opening statement i never did and but in that regard your opening

statement shouldn't go on for days or hours and hours keep it relatively short and concise of course depending upon the nature of the case remember that you're up against what i call the game

clock meaning the jurors at limited attention spans so you need to compact all your information in concise and short manner so it's informative for the jurors generally in an opening statement the

plaintiff or if it's a criminal case the prosecution goes first uh generally it's the party with the burden of proof makes the first opening statement followed by the defendant uh both in criminal and

civil cases um should you reserve or wave if you're the defense uh in both civil and criminal you may have the option to make your opening statement at the conclusion of

when the plaintiffs or the prosecution rests their case in other words you can reserve it until after the the plaintiff rests now there might be some tactical reasons you may want to do

that perhaps you're going to make a motion for a non-suit following the people's the the people's case or the plaintiff's case but i want to caution you about that overall my

opinion is you should you should practically never reserve or make your opening statement later and the reason for that is goes back to initial impressions if you wait

to give your opening statement then the jurors or even the court is not going to know exactly what your theories are or what the evidence is going to be from your standpoint and you know you risk

the fact that now they've heard the entire plaintiff's case and they haven't even heard your opening statement so there might be again valid tactical reasons to reserve your opening statement but i would be very cautious

about doing that also i want to talk about the use of exhibits during your opening statement and i've been labeled this important most jurisdictions and courts will allow

the parties to to show the jury during the opening statement exhibits that they plan to use during the trial for example photographs or diagrams that will be coming into evidence later

i feel this is so important again because the opening statement needs to be informative if there are critical photos of an intersection for example if it's a case involving a car accident or

that you might want to show them the jurors so they really understand your case from the beginning so if possible use exhibits during your opening statement one of my trial tips

is during the pre-trial conference discuss with the court the procedures regarding the use of exhibits during the opening statement for opposing counsels in other words if you know that your opposing attorney

plans to use exhibits um request to preview the exhibits uh your your opponent plans to use before the opening statement in the event there's something objectionable about it

and again the pre-trial conference or emotion in lemony prior to the opening statements is a good time to discuss with the court if any exhibits are planned to be used in the opening statement but generally most courts will

allow the the use of exhibits in the opening statement photographs diagrams even a video but but run it by the court first

all right i want to talk a little bit about what is the purpose of the opening statement and i think it's a good idea i'm going to cite some quote some what some of the courts have said about

what the purpose of the opening statement is and one court said quote to prepare the minds of the jury to follow the evidence and to more readily discern its materiality force and effect

another court wrote quote to provide the jury with a road map of what a party expects the evidence to prove it may properly show how the evidence on all reasonable inferences that may be

drawn from the evidence relate to the theory of the case another court wrote the opening statement is based on evidence a party anticipates presenting

lastly another court wrote an opening statement has a narrow purpose and scope is to state what evidence will be presented to make it easier for the jurors to understand what is to follow

and to relate parts of the evidence and testimony to the whole it is not an occasion for argument and towards the end of this video i'm going to talk a little bit about argument versus in an opening statement

and how that's prohibited if you want to see the citations for those cases you can refer to my handbook so let's talk a little bit about a strategy in other words you're preparing your

opening statement how do you want to lay it out and so here's a strategy or that you might want to consider when you're designing your opening statement i would first begin my opening statement

with a very brief introduction perhaps uh of uh reminding the par of the jurors or the court uh what the nature of the case is what the fact uh what the

charges are if it's criminal uh what the cause of actions are in summary so a brief introduction might be the very first thing you talk about then you want to relate the evidence

like a road map to the jurors or to the court and i call this a story told twice so essentially under on this strategy you're going to be explaining your case

and your theory of the case two times to the jury the first go through is going to be more like what i call a camp a campfire tail so imagine that you're sitting around a campfire with a good

friend at night and you want to tell your friend uh all about your case in 10 minutes or less and so you're basically just going to relay it in a narrative fashion from

beginning to end like you would tell someone an interesting story and this is how you should begin your opening statement to the jurors so one of my first trial tips is before you get to the specific

details of the evidence explain what happened from your client's perspective from beginning to end and without interruption in no no more than 10 minutes or so some attorneys like to

immediately recite a short dramatic prologue but be cautious that it doesn't seem melodramatic you may lose credibility with the jurors if they get the sense that you're play acting so

that's how i would begin my opening statement is just kind of give a 10 minute story of what happened beginning and end don't digress don't skip around go right

through it uh in a very narrative format just as if you were trying to tell a friend like i mentioned around the campfire in 10 minutes all about your case what the evidence will show

now the second time you're going to say it again but this time it's going to be more analytical and so what you'd say is ladies and gentlemen the jury now i'm going to explain a little bit more to you how i'm going to prove my case and

in this part of your opening statement you might run down the order of your witnesses and just give a very brief summary of what you expect they're going to testify about if you're calling an expert witness you might explain you

know who the expert is and a summary of what the expert is expected to say during the testimony if you're going to call your client to testify you would summarize this my client will get on the

stand and tell you a b c or d and so you're you're breaking your your you're going through in more detail what the evidence is and the facts on your case in in a more analytical fashion so

basically at this point the jurors have heard kind of the big picture the summer you gave him 10 minutes so everybody's on the same page you've made an introduction they know what the the issues are what's that issue and now the

last the second time you're going through it more analytical all the details and so now they'll know exactly more precisely how you plan to put on your case

now some courts have kind of weighed in about this process of making a narrative opening statement here's what a couple courts have said just to give you a little bit of guidance one court

court wrote quote nothing prevents the statement from being presented in a story-like manner that holds the attention of lay jurors and ties the facts and governing law together in an

understandable way another court wrote it may be presented in a dramatic manner that is calculated to hold the juror's attention all right so now let's talk about a few

more tactics or strategies that you might want to think about when you're designing your opening statement make sure that at some point in your opening statement you've defined the issues

you've explained as i've mentioned what the cause of actions are what the theories are if there's unfavorable facts in your case the opening statement is a good time to get them out

and kind of you're basically you're stealing your your opponent's thunder so to speak and you may probably have already brought that out during board ire if you have bad facts in almost all

cases there's something about your case that's a little bit weak uh you might you know a good time to bring it out is in the opening statement uh you're not denying it later in your closing argument you tell the jurors that you

know you discussed it and during board ire you brought it up in your opening statement and it turned out just as you predicted and you kind of shrug your shoulders doesn't mean anything

use caution and i put this in red that means it's very important about overstating or overselling your case so and often in criminal cases you don't you may not know and know exactly how

the evidence is going to roll out until it does so if that's the case if you're for example it may not be positive you're going to put your client on the stand you know don't make any representations

that's not going to come true later on in the evidence if you do that if you over sell overstate your case all you're really doing is handing your opponent good fodder for closing argument where

they when they stand up and say that during your opening statement you know council said he would prove this that or the other and they did the material material materialize

another trial tip to consider for your opening statement is listen carefully during your opponent's opening statement and take good notes if representations are made during the

opening that are not later proven it may give you good fodder for the closing argument kind of just what i just talked about now as i mentioned the opening statement a good way to think about it

is a road map designed to kind of give an outline of what the you expect the evidence is going to show throughout the trial from your point of view and there

are some areas that are not allowed and one of the courts uh i just mentioned a few minutes ago mentioning that is argument argument is prohibited during the opening statement and so what is

argument generally it's when you're going beyond uh discussing just the facts and evidence if you're going to start arguing inferences or deductions or trying to put it together for the

jurors and arguing what it all means that could be considered argument if you make rhetorical comments for example if you start appealing to the emotions of the jurors or you start telling them why

your case is so important or um you know that this is uh you know you're good you're really getting into more of an impassioned plea that would be considered argument it

might also be considered argument if you comment on your opponent's case so this is kind of a gray area so in your opening statement generally you would not be permitted

to start bashing your opponent's case before they've even made their opening statement however there could be exception to this for example let's say you're the defense in a criminal case i think you would be permitted to to

explain what the evidence is going to show in the case and the evidence is going to show through your questioning and cross-examination of the prosecution's witnesses that it's faulty that the prosecution won't be able to prove their

case beyond a reasonable doubt and you'd be able to go into what you expect the evidence to show that witnesses will have trouble remembering that you're the identification of your clients not clear so i would not consider that to be

argument but i would consider it more leaning more towards argument if you just really like treated it like a closing argument where you started talking about everything that you

anticipate your opponent is going to present and tearing it down before they even have a chance to be to make an opening statement so again the appropriate objection

if you feel your opponent's adventuring an argument is objection or counseling is arguing the case and it'll be up for the judge to make a ruling on that here's a couple more trial tips

regarding the opening statement an opening statement should generally not take more than an hour now that's a lot of time really so even for complex cases for shorter

trials it may take considerably less than that or much shorter time the key the key to the whole opening statement is that at the conclusion the jurors or at the court if it's a bench

trial should fully understand the big picture and the contested issues if the opening is too long so if you go on for a day or two or hours and hours or if you put in

too much information you get too far out into the weeds too much information and too much detail is given it might overload the jurors and start to begin to confuse them right from the beginning so you do want to

kind of keep it simple but you also want to have the jurors fully on board about the the basic facts what your theories are and what your evidence will prove

what your witnesses are going to say so this is just a really brief overview about the purpose of the opening statement just to recap i really feel it's effective if you kind

of do as i've mentioned you give them a very brief 10 minute or less overview kind of in a narrative format without interruption you're just telling the story let's say it's a case where you're

playing you're the plaintiff's attorney and the plaintiff was injured in a car accident you might just start out the story about how that morning she got up everything was fine she was taking her kids to school she was driving down the

street she went through the intersection the defender was coming the opposite direction you know we broadside her go on 40 miles an hour he ran the red light and then you go on talk about her

injuries how she went to the hospital you know and now all the injuries she suffered and all the damages she's incurred and you can tell the whole story there in five minutes from beginning to end

then in your second part of your opening statement you break it down as i've already mentioned in more detail about how the witnesses will come in and what each one of them will say and again

perhaps uh how the damages have been computed so thank you very much i realized uh covered a lot of information here in just a few minutes if this is interesting to you or would like to learn more

i would refer you to my handbook called the practical trial handbook and what i did in my handbook is i covered the nuts and bolts the fundamentals of a court or bench trial from beginning to end from

the motion and lemonade all the way through to the closing argument and everything in between and it's basically made for trial lawyers kind of as a refresher of the basics and also for law students who are

just kind of learning trial advocacy and i break it down to every topic for example just topics on jury selection the opening statement that we're talking about here today direct and cross-examination and by the way i have

other videos on cross-examination how to impeach a witness expert witnesses courtroom evidence how to mark evidence how to introduce it how to make good trial objections and i have another

video and it's also in the handbook on the closing argument if you found this video interesting or informative please give me a like and subscribe to my channel where you can access other short videos i've made on other areas of trial

skills and see the links below so thank you very much and good luck to you in the courtroom