Effective Opening Statements

I. Introduction

The opening statement is one of the most important components of any trial. It is your

first opportunity to present the case to the jury, and to shape the jury’s perspective of the entire

trial. The opening statement also is your first opportunity to present yourself to the jury, and to

establish the kind of credibility that will persuade jurors to trust the testimony, documents, and

other evidence that you eventually will submit for their consideration. A superb opening can set

you on a path toward winning the case, but a disastrous opening may be difficult to overcome.

Thus, the content and the presentation of your opening statement must be developed with care.

As a general rule, counsel may not argue during opening. Rather, the opening statement

should serve as a preview of the anticipated testimony, exhibits, and other evidence. Think of

the opening statement as a forecast, designed to provide a general understanding and provoke

further interest, like the kind of preview you might see on the inside jacket of a novel.

The jacket text that introduces a novel typically does not confuse the prospective reader with an

overly detailed chronology of events; it does not bore the reader with a recitation of the

characters’ names in the order they will appear in the book; and it does not command the reader

to feel a certain way about the story contained in its pages. Instead, the jacket text captures the

essence of the book in a way that gives the reader a general sense of the book’s theme, entices

the reader to proceed further, and leaves the reader to make his own judgment regarding the final

meaning of the story. That is the way jurors should be left at the end of the opening statement –

with an understanding of the case’s theme, an eagerness to learn more, and an appreciation for

the ultimate judgment they will be asked to make.

II. Elements of the Opening Statement

Theme of the Case

In the opening statement, a lawyer should provide the jury with a theme that will serve as

a framework for every piece of evidence the jury hears during the case. The theme should

communicate how the evidence will fit together, and why your client’s position in the case is the

right one. For instance, a lawyer defending a discrimination case may have a theme of

“unheeded warnings” to communicate that the plaintiff had a chance to improve their

performance before termination, but failed to take advantage of the opportunity. Plaintiff’s

counsel in the same case may have a theme of “repeated disciplinary actions, all motivated by

race.” Obviously, expressing a theme is difficult to do without bordering on argument – which is

improper in the opening statement – but courts generally allow a lawyer to state a theme at the

beginning and end of the opening statement, as long as the rest of the opening is not

argumentative.

A good way to develop a theme is to try to describe your case in one summary sentence,

without legalese, as you might do if you were explaining your case to a non-lawyer family

member. Get to the heart of the issue – think about the parties’ motivations, and the reasons

events unfolded the way they did. Answer the question: What really happened here?

Perhaps the case centers on someone’s personality flaw. In the employment context, a

plaintiff’s lawyer may focus on a sexual harasser who “can’t take no for an answer”; a defense

lawyer’s theme may focus on an employee’s “refusal to accept his own failure”. Perhaps the

theme of the case is a situation, such as “a company where minorities are routinely kept in lower-

level jobs” or “a supervisor forced to make difficult choices when the company hit hard times.”

Whatever the theme of your case, make sure it is a concept that resonates with people from all

walks of life, and one that is borne out by the evidence you will be presenting during the trial.

Often, the easiest way to present a coherent theme is to state it in a straightforward

manner as your introductory sentence: “Ladies and gentlemen, this case is about unfair

competition by the defendant.” In other situations, the theme may come out more subtly, as you

tell a story that slowly unfolds. Regardless of how the theme is presented, make sure it is

absolutely clear by the end. Before all of the witnesses and documents are presented to the jury,

make sure the jury knows exactly what they should be listening for – from your point of view.

(While you can’t argue your position, you can arrange the facts in such a way that only one

conclusion is inevitable.)

Don’t Waste Time Getting to the Theme

Many lawyers waste the precious first few minutes of their first impression by shuffling

through papers, explaining the purpose of the opening statement, thanking the jury for their time

and service to the community, and/or going through lengthy introductions of co-counsel and

client representatives. The first impression should be more compelling. Be ready to begin your

opening as soon as the moment arrives. Stand up quickly and start speaking with confidence,

demonstrating immediately that you are prepared and sure of what you’re saying. Tell the jury

something interesting in your first few sentences, and then return to the more mundane tasks of

introductions and thanks. For example:

The defendant had a contract with Smith Corporation. He promised that, in

exchange for three years of employment at a substantial salary, he would not take

Smith’s customers and employees when his employment ended. The defendant

has broken this promise. When his employment with Smith Corporation ended

last December, the defendant stole five clients and three employees, and caused

Smith Corporation to lose $10 million in business. That is why we are here today.

Ladies and gentlemen, my name is John Jackson. Together with my co-counsel

Sue Jones, I represent Smith Corporation. Sitting with us at the plaintiff’s table is

Robert Smith, the President of Smith Corporation. In this trial, we ask you to

hold the defendant responsible for his wrongful acts.

Set the Scene

After introducing your theme, you must set the scene of the case, building upon the

framework you have presented. Narrate the scene and introduce people and documents as they

naturally fit into the theme of the case – do not present a witness-by-witness catalogue of

testimony. For instance, tell the jury how they will learn about the plaintiff’s poor job

performance. Tell them they will hear from the plaintiff’s supervisor, who will explain that the

plaintiff was warned on numerous occasions that her attention to detail needed improvement.

Explain that the documentary evidence will support the supervisor’s testimony, as the jury will

see four years of increasingly bad performance reviews. Tell them they will hear from a human

resources manager who will put those reviews in context, and compare the reviews to others

received by employees company-wide. Present the people and evidence in the context of a story,

and the jury will look forward to hearing the story unfold as the trial progresses. This way, the

facts will not seem confusing and unrelated as they are presented during the direct and cross

examinations. Instead, the jury will remember your narration and recognize each character of

your story as he or she appears in the trial.

No Argument In The Opening Statement

Jurors are not supposed to form an opinion on the case until they have heard all of the

evidence. Accordingly, as stated above, arguments are improper during opening statements,

because arguments may not precede the introduction of evidence. (Note the meaningful

difference between the terms “opening statement” and “closing argument.”)

How can a lawyer introduce the case without arguing? Generally, if the opening

statement explains what you expect the evidence to prove, you are properly opening the case.

Unfortunately, there is a subtle difference between what is a proper opening statement and what

is an improper argumentative opening statement. Lawyers should avoid expressing opinions;

should not make direct statements as to why a particular piece of evidence is not believable; and

should not vigorously attack the opponent’s case. Nonetheless, a lawyer’s position on the case

will come through in an effective opening statement, from the order in which facts and evidence

are presented; in the choice of which facts are emphasized and which are downplayed; and in the

descriptive terms that are used (were they “lewd jokes” or just “sexual banter in the office”?).

You can be an advocate without arguing.

The following test is useful to help gauge whether you are recounting facts and evidence

or arguing them. Ask yourself this question: Are you describing to the jury what a witness or

document states, or are you drawing a conclusion from the testimony or the document? Only the

description is permissible in your opening statement; the conclusion must be saved for your

closing argument.

Be Persuasive Without Arguing

Despite the rule against arguments in opening statements, lawyers still can be persuasive.

Too many lawyers weaken their persuasiveness by trying to make absolutely clear that they are

not arguing. They repeatedly begin sentences with: “The evidence will show . . . .” This quickly

becomes boring for the jury to hear, and it is unnecessary. Instead, tell the jury in the beginning

that you are going to describe what the evidence will establish, and then never say that again

unless there is an objection.

Let the facts themselves argue your case. Assemble the facts, and present them in a

manner that leaves only one conclusion – the one you are advancing. If you want to convey that

an employee was terminated immediately after complaining of harassment, present the events

that way in your opening – describe the complaint, and follow immediately with the termination.

On the other hand, if you want to separate the complaint from the termination, describe the

complaint, then spend a while describing any intervening events, and then address the

termination. You will have communicated the lack of relationship between the complaint and

the termination not only by the facts, but by the timing and order of your presentation.

If you are successful in positioning your facts and evidence, there is no need to argue

what the jury must find, what they must conclude, or the verdict they must deliver. The facts

will speak for themselves.

Personalize Your Client

Use the opening as an opportunity to persuade the jury to like your client. Explain your

client’s motivations, and give the jury reasons to feel camaraderie with your client. If you

represent an individual plaintiff, convince the jury of your client’s integrity, and persuade them

that your client is not just out to make an easy buck; rather, your client suffered real harm.

Obviously, a lawyer representing an individual against a corporation may have an easier job

personalizing the client, but a management-side lawyer can personalize their client as well, and

the need to do so cannot be underestimated. For example, rather than focusing on the

corporation itself, a management-side lawyer should tell the jury about the people who comprise

the corporation – the relevant supervisors, the human resources representative, and/or the

company’s owner. Familiarize the jury with these individuals’ names, and their roles in the

drama, so that the jury will be considering the actions of people versus people in the case, rather

than a single, sympathetic plaintiff against a huge, faceless corporation.

Dealing with “Bad Facts”

Should your opening statement address harmful information that is likely to come out at

trial? In other words, does an effective lawyer “front” problems in the case? Lawyers inevitably

are dealt “good” facts and “bad” facts, “good” evidence and “bad” evidence, “favorable” law and

“unfavorable” law. Part of your job is to determine how to face these obstacles.

One option is to address the harmful information before it can be raised by opposing

counsel, in order to diffuse the situation. Presenting all issues, good and bad, may ensure your

credibility with the jury, and convey that you believe in your case despite any evidentiary

hurdles.

A contrary approach is to wait and see whether and how the information comes out

before giving it any attention. Jurors commonly do not expect lawyers to say anything negative

about their own witnesses, their evidence, or their case. Thus, by focusing on harmful

information, you may call greater attention to the damaging information than necessary. Also,

remember that once the opening statements have been delivered, the trial itself provides a chance

to respond to any charges that the other side makes.

Whether to introduce damaging information obviously is a matter of judgment, and the

decision will differ from case to case. A middle ground might include introducing harmful

information, but spending only a passing moment discussing it. Or, introduce all positive

information first, and only after such information has been laid out for the jury, address the

negative information and explain why it is not persuasive, thereby emphasizing its insignificance

to the case.

Importantly, defense counsel has the advantage of going second. If the jury did not learn

the harmful information during the plaintiff’s opening, then the need to deliver the information

during the defense’s opening is decreased. While the plaintiff may decide to introduce the

negative information into evidence later in the trial, consider the possibility that the plaintiff may

decide not to introduce the evidence at all; the court may decide not to admit it; or the evidence

may come in weakly, without the power you expected. Thus, it may be wiser for defense

counsel to avoid discussing any “bad facts” in the opening statement that plaintiff’s counsel has

not already raised.

Visual Aids

It has been said that a picture is worth 1,000 words. Thus, keep in mind that effective

opening statements need not be limited to words. The use of exhibits and visual aids can

enhance the value and effectiveness of counsel’s opening statement. (Just make sure that you

have followed your court’s rules on the subject, and have a “plan B” if the court decides not to

allow your visual aids.)

Remember, the purpose of the opening statement is to explain what the evidence will

show, and a good explanation may include some of the evidence itself. Lawyers generally are

allowed to read from, or display, documents and other exhibits that they expect to be admitted

into evidence. Less is more in this situation, however – counsel should include only two or three

of the most important exhibits, and not confuse or overwhelm the jury with too many details.

Use a pointer so the jury can follow as you indicate what the exhibit reflects. To the extent that

the evidence includes important photographs, maps, and/or charts, use them. If your case hinges

on a performance review, a letter, or a contract provision, enlarge it and show it to the jurors.

Visual aids, which may summarize or analyze the evidence, such as charts, graphs, and

chronologies, also are tools that may enhance the opening statement, as they can help jurors

understand the eventual trial evidence. As long as the visual aids are not misleading or

argumentative, such as “Five reasons why the plaintiff should lose,” they should be acceptable

for use during the opening statement in most courts. Counsel should remember, however, to

show opposing counsel any visual aids in advance, and to obtain advance permission for their

use from the court.

Finally, exhibits that are not visual also may be used during the opening statement. In the

right types of cases, it might be advisable to use tape recordings, for example, if they will later be

offered into evidence. The key is to get the jurors interested in what you have to say. Visual and

other sensory aids will help keep jurors attentive, interested, and informed.

Plaintiff's Opening vs. Defendant's Opening

Delivering an opening statement on behalf of a plaintiff presents different challenges than

delivering an opening statement on behalf of a defendant. Plaintiff’s counsel must determine

whether to anticipate and respond to expected defenses. Defendant’s counsel must decide

whether to react to the plaintiff’s opening.

In the employment context, plaintiff’s counsel faces particular difficulty when it is

expected that the defendant will present an affirmative defense. Affirmative defenses raise

issues that go beyond the plaintiff’s own case. Accordingly, if you are plaintiff’s counsel, you

must decide whether to ignore the affirmative defense and lose the opportunity to reply to it until

later in the case, or respond to the defense in advance. If you choose to address the affirmative

defense in your opening, be sure to avoid getting the jurors fixated on the negative aspects of

your case. Reject the affirmative defense quickly and for a solid reason. Be firm, unapologetic

and straightforward. If you seem overly concerned about the defense, it will suggest to the jurors

that you have a weak case.

Another tough question for plaintiff’s counsel is whether to address damages. Generally,

asking for specific damages in the opening statement is premature, and may turn off the jury.

Save it for closing, when the jury will be entirely convinced of the defendant’s misconduct and

ready to consider the financial consequences.

Defendant’s counsel faces different issues when delivering their opening statement,

caused by the advantage and disadvantage of going second. If you are defense counsel, by the

time you begin your opening statement, both you and the jury will have listened to the opening

by plaintiff’s counsel. The jury will be waiting for your take on the dispute to which they have

just been introduced. After all, the plaintiff’s opening statement is essentially an accusation, and

the jury will be wondering if the plaintiff’s allegations about your client are true. As defense

counsel, you must respond with a clear denial, as anything short of a denial will be seen as an

admission of fault. It is also important that you respond, to some extent, to the plaintiff’s version

of the evidence. Simply telling your independent version of the story is not sufficient, as that

will not help explain why the facts that support your version of the story are superior. Instead, as

you set forth the evidence in your opening statement, note on occasion how the evidence

contradicts the plaintiff’s theory of the case (without crossing the line into argument).

For instance, “Plaintiff’s counsel told you that Ms. Clark did not have an adequate opportunity to

improve her job performance. But in this case, you will see no less than five performance

reviews, over a period of five years, in which Ms. Clark was specifically advised to pay closer

attention to deadlines.”

Additionally, it is perfectly permissible to point out evidentiary gaps in the plaintiff’s

opening statement, and if appropriate to your case, you should do it. For example, “Plaintiff’s

counsel accused my client of sending her offensive e-mails every day for six months. Where are

those e-mails? In this trial, plaintiff will not have even one e-mail to show you.”

Finally, defense counsel must respond to comments concerning the credibility of defense

witnesses. Silence may be seen as a tacit admission. Use the opening to protect and defend your

witnesses, by introducing them to the jury with facts that demonstrate their integrity,

trustworthiness, and/or lack of bias.

Omissions by the Other Side

Listen for what is missing from opposing counsel’s opening. Is there something

opposing counsel is afraid of? Is there a “bad fact” that opposing counsel intentionally avoided

discussing? Often, the silence may provide more clues about opposing counsel’s plan for the

case than what is actually discussed. Use the omissions to help you strategize as the case

proceeds.

Discussing the Law

The judge will explain the legal questions for the jury’s consideration when the jury

instructions are given, usually at the close of the evidence or after counsel’s closing arguments.

Thus, the opening statement generally is not the time to tell the jury what legal questions will be

the subject of their deliberations. Sometimes, however, a lawyer must reference legal questions

in the opening statement to give the jury some context for the subject of the trial. For instance, a

lawyer may tell the jury they will be asked to decide what kind of conduct constitutes sexual

harassment, or whether a company’s response to a harassment complaint was sufficient. As long

as the legal questions are broadly framed, the judge likely will allow the lawyer some latitude.

Exaggeration

The opening statement should be straightforward and direct. Avoid exaggerating or

misstating the facts, and don’t overdo the emotion. If a lawyer relies on exaggeration to appeal

to the jury, he or she will certainly hear about “broken promises” in opposing counsel’s closing

arguments. Moreover, counsel should remember to be sensitive to any issues which the jury may

find uncomfortable, and should avoid attacking witnesses too harshly as they are described.

Jurors may react with sympathy for the witnesses, and might hold it against the lawyer and,

consequently, the lawyer’s client.

Nonetheless, a lawyer should not be afraid to use exaggeration to his or her advantage.

Sometimes, for example, reading from the other party’s own pleadings is helpful if the pleadings

have exaggerated the facts, and the opposing party will never be able to prove the statements

they have made.

Movement

Your opening statement may be more forceful and effective if you move about the

courtroom during your delivery (assuming the court’s rules do not restrict you to a podium or

table). Movement can be used to transition from one topic to another, or to emphasize a

particular point. For example, to highlight a change of subjects during the opening, take a step or

two to the side, and pause. This will signal to the jury that one subject has ended and another is

about to begin. The motion also will refocus the jurors’ attention on you if their mind has

temporarily wandered.

Deliberate movements also can attract the jury’s attention and emphasize an important

point. Should you want to stress a critical fact, take a few steps towards the jurors. The faster

and more purposeful your movements, the more emphasis is placed on the point you are making.

Use a transition sentence while moving toward the jury, then come to a stop, and deliver the

important point while standing still. The contrast will emphasize the point.

Too much movement can be ineffective, however. Don’t move so much that the jury

notices your movement more than your words. Do not run, and do not hover over the jurors.

The invasion of their space may be seen as threatening, claustrophobic, and overbearing. Also,

don’t pace. Pacing distracts the jury and deprives the lawyer of the ability to use movement for

emphasis.

Do Not Read Your Opening

Do not read the opening statement. You must become comfortable talking directly to the

jurors, as there is little more uninspiring and dull than a lawyer who reads the opening statement.

While reading the opening may help you avoid forgetting any of your points, and may ensure

smoothly flowing sentences, an opening that is read is essentially a waste of time, as the content

undoubtedly will be overshadowed by the poor delivery. Jurors want to see a lawyer’s concern

and familiarity with the case. Relying on a script conveys the opposite – a lack of true belief in

the case, and a lack of familiarity with the events at issue. Notes in outline form are a different

story, however – notes may be referred to in between pauses without dampening the effect.

Moreover, it may be helpful to write out the opening statement in full during the preparation

stage, and practice delivering it from the script, getting progressively less and less reliant upon

the written words. When the real moment comes, however, a lawyer should put the script away.

Don’t even bring it to the courtroom, as you may be too tempted to use it.

Look at the jurors while making the opening statement, and show them you care about

your case, and what they think. Connect with all of the jurors – don’t just focus on a select few,

no matter what reactions you are getting. Jurors will appreciate the attention and interaction, and

will be more receptive to your presentation. Do not forget the importance of a friendly

demeanor. Do your best to give the jurors a favorable impression of you as a person, in addition

to you as a lawyer. Don’t be afraid to laugh at your own mistakes, if you misspeak or fumble

with your words for a moment. Jurors generally appreciate lawyers who are humble, and do not

take every single moment seriously. Moreover, jurors, like most people, do not like hostility and

anger. Lawyers who demean, insult, or bait the other side are inviting the jury to dislike them,

and to extend sympathy to the other side. Acting courteously toward opposing counsel,

witnesses, the judge, and courtroom personnel is never a mistake.

Bench Trials

Lawyers often agree to waive the opening statement in bench trials, but waiving the

opening generally is not a wise move. Just like jurors, a judge needs an overview of the case

before the evidence is presented, so that the evidence will have some context. Thus, unless the

case has been assigned to the same judge for a long time, and you are certain the judge (and the

judge’s clerk) knows your case extremely well, do not waive the opening – just make it shorter

and less dramatic. Also, feel free to address more law during your opening in a bench trial.

Clarify for the judge what legal questions will govern the case, and what standards the judge will

need to apply.

III. Concluding Your Opening Statement

A simple, smart way to conclude your opening is to tell the jury exactly what you would

like from them at the end of the case: “After you’ve heard all the evidence, we will ask you to

return your verdict for the plaintiff, Sally James.” Such an ending may not be dramatic, but it

gets your ultimate point across effectively. Or, consider ending with an expression of thanks for

the jurors’ time and attention. If you can do it sincerely, a statement of gratitude may be the best

way to curry jurors’ favor before you embark upon the next stage of the trial.

Above all else, conclude confidently, and with an unambiguous message. Leave the jury

with a clear understanding of your client’s position in the case, a basis for believing your side,

and an appreciation for their role in the rest of the trial.