The Opening Statement
New York Law Journal
October 24, 2000
SECTION: TRIAL ADVOCACY; Pg. 3
HEADLINE: The Opening Statement
BYLINE: By Ben Rubinowitz and Evan Torgan; Ben Rubinowitz is a partner at Gair, Gair, Conason, Steigman & Mackauf. He also is an adjunct professor of law, teaching trial practice at Hofstra University School of Law, and is a team leader at the National Institute for Trial Advocacy. Evan Torgan is a member of Evan Torgan P.C. He is an adjunct professor of law, teaching trial practice at Benjamin N. Cardozo School of Law, and is an instructor at the National Institute for Trial Advocacy.
THE OPENING statement is your first real opportunity to speak directly to the jury about merits of the case. It is one of the first opportunities to persuade. It presents an immediate chance to leave an indelible impression on the minds of the jury that hopefully will stick with them throughout the trial.
The opening statement lays out the specific facts of the case and can serve to reinforce its strengths and to diffuse its weaknesses. The opening statement must be viewed as a crucial starting point for persuasion. As with all aspects of the trial, preparation is essential.
Work With Operative Terms
One of the best places to start your preparation is to begin at the very end of the case. The last thing the jury hears before they deliberate is the court’s instruction on the law.
To prepare for the opening you must be fluent with the court’s charge. It is impossible to properly structure your case, much less your opening statement, without a thorough grasp of that which you must prove in order to win your case. Therefore, you should strive to work the operative terms from the instruction right into your opening. By no means are we advocating that you recite a lengthy portion of the court’s charge in your opening. Additionally, we are not suggesting that you actually tell the jury the law, as that would be improper at this stage of the proceeding. Rather, we are suggesting that you can work with specific words or phrases to assist you in spelling out your theory of the case.
For example, one of the most common charges on which the jury will be instructed in a personal injury case is the concept of proximate cause. The New York Patten Jury Instructions, @ 2:70, define this concept as follows: “An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the accident….” In your opening, while you should not recite the charge verbatim, you can work in the key words. Consider for example the following statement in an auto case:
Members of the jury, it was the defendant’s failure to slow down as he approached the intersection that was a substantial factor in causing or bringing about the accident.
Even in an intentional tort case the language from the charge must be carefully tracked. Rather than simply reciting the word “intent,” by following the language in the charge you can state:
It was the defendant’s intent, or conscious objective, to cause physical injury to (the plaintiff).
Suppose you represent a plaintiff injured in a fall through a trap door in a store, and hope to prove that a landlord had violated a specific section of the Building Code that requires corridors to be left unobstructed. Assume you are concerned that the jury might not find that the subject area was a “corridor” within the meaning of the statute. This is an ideal situation in which to influence the jurors and familiarize them with the words they will come back to during their deliberations:
Rhonda Johnson walked into the store, past the shelves, and down a narrow corridor in front of the prepared food container. As she turned to her right and began to proceed down that corridor, a salesperson came back, forcing her to take one step back. The next thing she knew, she was at the bottom of a staircase.
By using operative terms at this early point in the trial, the jury will become acquainted with and accustomed to the very words the court will charge at the end of the case. As the jury listens as your proof comes in, they will likely view it through the terms you have introduced in your opening, and hopefully adopt those terms as their own. If done successfully, the jury will become so familiar with these terms that, at the end of the case when they hear those phrases again in the judge’s charge, it may seem as if the judge has tailored his charge to fit your proof, as opposed to the opposite reality.
Understatement v. Overstatement
One of the most difficult issues confronting the attorney preparing an opening is how much to say. The answer is found in the following two guidelines: If you can’t prove it, don’t say it; and promises made, must be kept.
You must resist the temptation to say anything that you cannot prove. By overstating the case, not only will you lose credibility with the jury, but you will open up a fertile area of attack for your adversary.
Imagine the scenario where you open by stating that you will prove three specific facts. In actuality, at the end of the case, you have been successful in proving only two of the three. Clearly your adversary now has an advantage. If she is shrewd she will remind the jury during her summation of your unfulfilled promise. Your credibility will be hurt. To avoid discrediting yourself and hurting your case we believe it is always better to understate the case than run the risk of overstating it. Exaggeration, even in the smallest degree, can come back to haunt you.
Suppose you represent a plaintiff in a medical malpractice case where your client was injured during surgery where the surgeon injured a structure outside the operative field in an area unrelated to the surgical site. Your adversary overreaches and delivers an opening that includes a phrase such as “Dr. Khaldoun took all available precautions and did everything he could to avoid these injuries.” You have been granted an opportunity in summation to focus not only on the court’s anticipated charge on reasonable precautions, but also to emphasize your opponent’s exaggeration. This enables you to effectively lower your burden of proof, attack the overall credibility of your adversary and prove that the defendant certainly did not take all reasonable precautions:
Defense counsel told you in his opening statement that his client took all available precautions. We know, however that he didn’t. We know he didn’t utilize all diagnostic tests and all studies before beginning the surgery. We know he didn’t call for a consult during the procedure and we know he didn’t perform all available intra operative studies. So, when his lawyer stood here and told you at the start of the case that he had done everything possible to avoid this injury, he told you something that simply was less than the truth.
Dealing With Weakness
Rare indeed are the perfect cases. Invariably, you will be presented with weakness ranging from mild (your client was walking just outside the crosswalk when he was run over by a turning vehicle) to severe (your client was convicted of fraud and perjury several years earlier).
The weaknesses that must be dealt with in the opening statement are those that scare you. The question is what are you going to say about your client’s past problems or difficulties with liability. The attorney who thinks he is better off not saying anything at all and not divulging these facts in his opening (and jury selection as well) is sorely mistaken. By shying away from these difficult issues and failing to mention them in your opening you are giving your adversary a tremendous advantage. You are not only allowing him to paint a bad picture of your client but, more importantly, are allowing him to discredit you by revealing your failure to deal with those facts. True, you should attempt to deal with such weaknesses prior to the opening statement with a motion in limine, but you must be prepared to deal with the issue if the court rules against you.
With regard to personal issues, such as a prior conviction, the so-called “confessional approach” that we discussed in our prior column on jury section often works the best:
I’ll tell you right now, so that you understand both the good and the bad, that my client has had some trouble in his life. He was convicted of perjury seven years ago and served six months in jail. It is our position that this past misdeed has nothing to do with the events that bring us here today. We will show that it doesn’t make this accident any less the defendant’s fault, nor does it make my client’s suffering any less real. But we bring it to your attention, so that you can evaluate all the facts.
By approaching the problem area this way, not only will the jury appreciate your candor, but, with any luck, may resent your adversary for injecting an issue they believe to be irrelevant into the trial.
The Impact Opening
The actual delivery of the opening is as important as its substance. The attorney who grabs hold of the jury’s interest and captures their attention from the outset by letting the jury see him as a believable source of information is well on his way to winning the case. One way to grab the jury’s attention immediately is to deliver an “impact” opening statement.
The impact opening forces the jury to focus immediately on the issues and, if done correctly, influences the way in which the jury interprets the facts throughout the trial. It relies on the psychological theories of primacy and recency: That which a jury hears first and last will be remembered more clearly and readily than that which is lost in the middle. Simply put, take advantage of the opportunity to leave a good and lasting first impression.
Consider the chronology of events prior to the time that you stand up to deliver your opening. You have already selected your jury. You are in the courtroom. Generally, the trial judge begins with a preliminary instruction. That instruction makes clear that what you and your adversary say in the opening statement is not evidence and that it is merely an outline or roadmap of the proof which counsel intends to offer. Moreover, the judge will usually instruct the jury that they are not to make up their minds until the end of the case after the court has given its instructions.
The notion that the jurors will sit through days and even weeks of testimony and will somehow suspend their judgments and impressions until the end of the trial is unrealistic. Jury studies have shown time and again that jurors often make up their minds about ultimate issues based largely on whatever is said during the opening statements.
Because the opening is the first opportunity to teach and persuade it is rarely, if ever, appropriate to waive the opening statement. Moreover, if you represent the plaintiff, it is a time when you can start carrying your burden of proof. Because no single witness can tell the whole story as effectively as the attorney, it is flat out wrong to start with a disclaimer like this:
Ladies and Gentlemen. It is important that you remember that what I say to you is not evidence. It is important that you remember that what my adversary says is not evidence. The proof will come from the lips of the witnesses and the exhibits that are offered in evidence.
Here, the attorney has done a disservice to his client. He has wasted everyone’s time by reciting the court’s preliminary instruction. More importantly, the jury has been told the wrong message. The lawyer has said in essence: “Don’t listen to me. I have nothing of value to tell you.”
Painting a Picture
You should instead take advantage of the initial opportunity to speak by painting a clear picture of the facts for the jury. The most persuasive speakers are those who tell a compelling story. The most compelling orators are those who do not rely on notes. Therefore, you must have a command of the entire case and be prepared to deliver the opening without reading. Why would a jury find an attorney a credible spokesperson for his case if he does not know it well enough to deliver it unfettered by notes? And how believable is the lawyer who cannot look each juror in the eye as he makes his opening?
Suppose, for example, you represent an individual who was injured at a work site. Rather than simply reciting the court’s preliminary charge by stating that you now have an opportunity to deliver a roadmap or table of contents, get right to the heart of the matter by immediately leaving a forceful impact on the jury. When you have a unified trial, contrast the injury with the defendant’s negligent acts and omissions. Stand up without notes, look at each juror and then begin:
Members of the jury, on Jan. 9, 1998, Marty Royce was severely injured. What he did not know when he started working that day, was that a site inspection had not been conducted. What he did not know is that the grounds were left in a dangerous condition. What he did not know, was that no one would remove the hazards from that work site. What Marty now knows is that he was severely injured. What Marty now knows is that he will never work again. What Marty Royce now knows is that he will never walk again. Ladies and Gentlemen, I represent Marty Royce, the man seated at the back of the courtroom…
Obviously, at this point you have to take the jury back in time and fill in the details of who your client is and was and spell out the details of the negligence; however, by delivering an impact opening the jury has a good understanding immediately of what the case is about.
The impact opening is a device that can be used in almost any type of case. Consider for example, delivering an opening statement in a drunk driving case. Here you should begin with a slow delivery and continue by raising your voice with each progressive sentence:
Ladies and Gentlemen. On May 1, 1996 a man made a conscious decision to drink and drive. As a result of that decision Deirdre Wells lost her husband. As a result of that decision, Deirdre Wells’ hip was fractured. As a result of that decision, Deirdre Wells’ arm was fractured. The man who made that decision to drink; the man who made that decision to drive after drinking; the man who took his keys from his pocket and put them in the ignition; the man who took the life of one man and severely injured a woman is the defendant. The man seated right over here (pointing).
Here not only does the jury get the gist of your case but, if delivered correctly, will allow the jury to become angered by the conduct of the defendant.
Consider a medical malpractice case in which a young boy suffered brain damage as a result of an anesthesiologist’s malpractice. Once again, the impact opening statement serves to capture the jury’s attention immediately:
On Nov. 11, 1995, David Truss went to Memorial Hospital for surgery. What his parents did not know is that his anesthesiologist had left the operating room. What his parents did not know is that a nurse had been substituted in place of the anesthesiologist. What his parents did not know is that no one would be monitoring David’s oxygen saturation levels. What his parents now know is that their son cannot speak; what his parents now know is that their son cannot see; what his parents now know is that their son was terribly brain damaged that day.
Once again, the portable nature of this type of impact statement serves a two-fold purpose: to grab the jury’s attention and to persuade from the outset.
‘Dark and Stormy Night’
There are different methods of delivering the impact opening. Some methods have been referred to as the “Dark and Stormy Night” approach. With this approach the lawyer stands up, again without notes, and begins:
Ladies and Gentlemen. If you were to go to the intersection of 60th and York in New York City you would find a building. The building has 12 floors. On the 12th floor there is a room and in the room is a bed. On that bed is a man. Everyday at 12 noon a woman goes to that building and goes up those 12 floors. She goes over to the bed. She takes hold of the hand of the man who is on that bed. He does not feel it. She combs his hair. He never moves. She speaks to him. He never responds. Who is this man? And why is he there? That members of the jury is what this case is all about. I have the privilege of representing that man and that woman.
Your ability at the outset to capture the jury’s attention, gain their respect and structure the case in your terms will often dictate the final result. Your opening statement should work with the law’s operative terms, utilize understatement rather than overstatement, deal with case weaknesses and employ a high impact approach. By strategically planning your opening, forgoing the use of notes and looking the jury in their collective eye you will enhance your credibility and chances of success. A fine-tuned opening can help you lay out your case. A high impact opening can win it.