Complex Litigation

Practical Tips About Opening Statements

By Michael Hoenig - New York Law Journal - August  8, 2016

My June and July columns offered, respectively, some practical tips on trial preparation and presentation of the defense case. For simplicity, the columns assumed the perspective of defending a major products liability case. Using the same motif, this article discusses practical considerations regarding defense counsel's opening statement.

Following jury selection, counsel for the plaintiff and defendant are permitted to make opening statements. The general purpose of the opening statement is to inform the jury as to the nature of the case and to outline the proof so that the jurors may intelligently follow the testimony of the witnesses. The opening furnishes a further opportunity for defense counsel to strengthen his rapport with the jury. The various circumstances in a given case will necessarily determine how much should be said. It must be remembered that by the time plaintiff's opening has been heard, the jury will likely be feeling strongly sympathetic to the injured claimant. In his opening the defense lawyer is telling the jury that there is another side to the story.

Principles generally applicable to opening statements in other kinds of tort cases also apply to those made in products liability trials. It has been said that the opening statement is to a trial what the overture is to an opera; it sets the mood and introduces the theme.

The opening is not an argument on the merits (although some permissible argument may be interjected). It is a preview of the evidence. Counsel advises the jury that the defendant has a meritorious defense either on liability or damages or both. He tells the jury to keep an open mind until conclusion of the trial when all the evidence is in. The jury should be made to anticipate that there is much more to the case than the plaintiff's version. There will be a whole new theory presented by the defense which will show that plaintiff is not entitled to recover.

The importance of a good opening cannot be over-emphasized. A good opening develops from preparation well before the first day of trial. Trial specialist Robert J. Bohner, in his excellent discussion of opening statements, observes that "most jurors make up their minds about the case after the openings and…their opinions do not change during the trial."1

The good opening is not a rigid, memorized speech. It must be delivered in an ordinary conversational tone projecting a feeling of absolute sincerity and belief in the defendant's position. Projection of an attitude of confidence and assurance is, of course, vital since the jury will otherwise get the notion that the defense is doubtful or weak. The voice should be strong and clear; the pace of speaking should vary.

The style should be narrative. A monotone delivery does not project enthusiasm and quite naturally will become boring even if the content is meaningful. Rhetoric should be avoided. Save it for summation. Since many plaintiffs' attorneys deliver emotional, energetic openings, a calm, logical, confident delivery by the defense lawyer can offer an impressive contrast.

Positive Storytelling

It is impossible in the space permitted to cover all aspects of suggested techniques. Much of the advice given by experienced lawyers boils down to pure logic. E.g., make the facts interesting; inject an element of suspense; reveal broad outlines of an occurrence—not minute details; use the general arts of storytelling; create pictorial representations; stress strong points of your case; define technical terms; do not use legal words of art unless they are explained carefully; do not overstate your case or "lay it on thick"; do not lose the interest of the jury by an opening that's too long or so short that it doesn't tell them anything, etc.

Communication is the name of the game. That is not merely the physical act of speaking and the jury's hearing what is said. The jury must be impressed with the significance of what is said. Preview the defense story for the jury. A positive approach of telling what the defense will show is definitely preferable to merely indicating what the plaintiff will fail to show.

Since the defense will often involve an explanation of the product and its performance, technical terminology may be repeated throughout the trial. The opening is a good place to familiarize the jury with the most important technical terms that will frequently appear. Good, simple definitions or illustrations should be prepared before trial. Similarly, since demonstrative evidence is often utilized, counsel can emphasize the importance of such evidence as fact rather than opinion. The opening is a good opportunity to build up the defense experts' qualifications and reputation, as well as the factual bases of their expertise.

The contents of an opening generally might include (not necessarily in chronological order) an introduction of the defendant; a nontechnical recitation of the facts to be proved; a definition of the issues (the jury must clearly understand what the issues are); a reference to the applicable law (reciting the legal theory upon which plaintiff relies); a reference to those matters covered in the plaintiff's opening which were misleading or which require some correction or comment; and a preview of the defense story.

The defense attorney must listen carefully to his opponent's opening. What is learned is often valuable information and may shape defense strategy. Many attorneys order a transcript of the plaintiff's opening, a wise investment. If the claimant's attorney knows the opening is being ordered, he may tend to be more careful in curbing improprieties. Furthermore, in summation the defense can capitalize on plaintiff's failure to prove during the trial what was promised at the outset. Admissions made by plaintiff's counsel should be carefully noted as they may bind his client in the same manner as testimony or pleadings. A transcript preserves such admissions.

In responding to plaintiff's opening, it is advisable to confine remarks to areas of disagreement in the contentions of the parties. Otherwise the repetition will lengthen your statement and detract from the strong points you wish to make. It is also advisable to avoid objectionable material in the opening (e.g., disparaging remarks about your adversary; arguing the case) so that interruptions by plaintiff's counsel are avoided. The adversary's objections might hamper the flow of your opening and give the jury the wrong impression about your statement.

An I.O.U.

The opening statement is an I.O.U. The promises you make must have been delivered at the end of the case, so it is advisable not to overstate the defense position. If there will be conflicts on key facts, it is helpful to tell the jury that they will have to resolve such conflicts after weighing the evidence and, therefore, they should keep an open mind. Where there is uncertainty as to what the defense will prove, it is best not to be specific and not to promise something that cannot be delivered. Leave the matter open.

If a real weakness in the defense case has been dealt with in plaintiff's opening, consideration should be given to facing up to the problem in the defense opening rather than waiting to meet the problem at trial. If the weakness has not been dealt with in plaintiff's opening, but is likely to be revealed at trial, a dilemma is presented. No general rules can be formulated for such situations and the particular facts and circumstances will have to dictate the best strategy. If you admit a weakness that plaintiff may not have discovered, the tactic may benefit the plaintiff.

Venerable literature on openings suggests do's and don'ts to consider [the following are abbreviated]:

1. Try to convince jury of your honesty, integrity and friendliness;

2. Be candid and informal;

3. Don't run down the adverse party or opposing counsel;

4. Tell the jury about the important legal implication of certain favorable facts;

5. Don't disclose your defense unless certain that opposing counsel knows all about it;

6. Pick out your strongest points and hammer them home; repetition may be necessary;

7. Don't talk too long; don't overstate;

8. Don't pontificate; save the great oratory for final argument;

9. Don't assume that the jury knows as much as you do about the case;

10. See which jurors are paying attention to your remarks;

11. Take mental note of any point in your opening that appears to impress some jurors so it can be stressed by evidence;

12. Don't get so involved in your statement that you miss the jury's reaction to it;

13. Within reason, present your case in the most favorable light;

14. Don't ignore the judge's reaction to your statement;

15. Don't state a fact you cannot prove;

16. Have the statements transcribed for various uses later on.

Visual aids may be referred to effectively in an opening, although use of them may provoke an undesired objection. Care is indicated about using intended exhibits. If you refer to an exhibit you intend to offer into evidence but an objection is later sustained to it, you cannot deliver on a portion of your I.O.U.

Lawyers frequently find it helpful to tell jurors why they are making an opening statement. For example:

The reason I am making an opening statement and the reason I think it is important to make an opening statement is that in the trial of a lawsuit it is practically impossible to bring witnesses to the courtroom, put things on in a very orderly or chronological manner so, frequently, it's like putting together the parts of a jigsaw puzzle. And my view of the purpose of an opening statement is to tell you what the jigsaw puzzle is going to look like when it is over and all the pieces are put together. So that when you are examining one of those pieces, which is the testimony of the witnesses in the case, you will be able to appreciate and place that evidence into some focus.

Sometimes, plaintiff's attorney has glossed over certain facts in his opening which are particularly relevant from a defense standpoint. Defense counsel will not want to repeat facts already covered but will want to indicate that essential details were omitted. The bottom line message: Craft the opening carefully!

Endnotes:

1. R.J. Bohner, "Motions In Limine; Opening Statements," Chapt. 10, at p. 10-13, in the N.Y. State Bar Ass'n book, "Preparing For And Trying the Civil Lawsuit," (2d ed. 2016) (Editors-in-Chief: Neil A. Goldberg and John P. Freedenburg). At the end of Bohner's chapter is a bibliography of sources on opening statements.

 

Printer Friendly Version

Back to Archive

125 Broad Street, New York, New York, 10004 - Phone: 212-471-8500 - Fax: 212-344-3333
©2004 -2014 Herzfeld & Rubin, P.C.