In this blog post I am going to lay out the primary steps you should think about when creating and drafting an opening statement. These ideas can be found in greater detail in my texts with WEST Academic publishing, "Fundamental Trial Advocacy" (FTA) and "Mastering Trial Advocacy" (MTA). FTA is a thoughtful book that captures my particular essence as a trial attorney, MTA is more basic text designed to be used in a cookbook fashion. Let's talk about Opening Statements.
Introduction
During openings counsel have their first opportunity to explain to the jury what happened, and why it matters. This is an important persuasive moment in the trial, counsel must make it count. Openings are carefully constructed to highlight the relevant facts, foreshadow the law when appropriate, and to establish the moral imperative demanding justice for the client. The structure and nature of openings are controlled by the relevant rules of procedure, either civil or criminal, the local rules of court, and the unwritten local customs. Counsel should prepare openings with all three of these in mind.
The opening statement is the first and best opportunity to influence the jury’s decision-making process. Counsel should use openings to tell their relevant story of the case, based upon thorough case analysis and preparation. Proper openings provide a framework for the jury to conceptualize what is going to happen during the trial, as well as an outline making the testimony of witnesses more relevant.
The tone and presentation of the opening statement establishes a relationship between the attorney and the jury that must be nurtured through out the trial to maximize the persuasive power of the case. To effectively deliver persuasive openings counsel must carefully structure and deliver their openings using a thoroughly developed knowledge of themselves, the case, and human nature.
Drafting the Opening
The opening statement delivered in the courtroom before the jury must reflect the hard work done by counsel during case investigation, analysis, and preparation. It is controlled by the relevant legal standards, but must also be grounded in an understanding of how to tell a story in a way that grabs the jury’s attention, holds their interest and makes them receptive to the evidence later admitted
Often counsel will begin their opening with a thematic statement setting the stage for the story of the case. These thematic statements catch the jury’s attention and focus them. They serve as an intellectual “shorthand” designed to connect the jury to whatever timeless human theme may be present in the case. Instead of beginning with “once upon a time” they begin with the core concept of the case in way designed to grab the jury’s attention.
Counsel must choose which story, from a myriad of possibilities, they will tell the jury during opening. This story is not a representation of a core truth about the case, but is rather a construct based upon the applicable law and admissible evidence. There is a choice that is implicit in this process - to tell the best version possible ethically while achieving a resolution in favor of the client. These choices not only encourage, but require careful editing based upon the law. The law works in concert with the facts to create the most persuasive presentation.
Creating the story of the case is not an exercise in creative writing, but rather a logical process informed by counsel’s understanding of human nature while also taking into consideration how the jury is likely to react to both the evidence and witnesses. There is an art to this, but it also lends itself to a formulaic series of steps designed to create an interesting presentation. When crafting openings counsel should consider the following storytelling techniques:
Counsel must identify the core story designed to bring the jury to the moment of decision in a way which opens them up to the evidence which will be presented. The story of the case told in the opening is a promise made by counsel to the jury. A promise as to what the case is about. Promises made in court must be kept, or the consequences for failing to keep them will be paid. In telling the story each word matters.
During case analysis counsel identify those hard questions of fact upon which the case turns. It is important to have a theory dealing with every hard question of fact in the case. Failure to answer the hard questions, either by attempting to ignore them, or inadequately explaining them, can destroy the quality of an opening statement, not to mention the strength of the entire case. The answer to the hard question of fact can be addressed through other facts, attacking the credibility of the witnesses who testify as to the hard questions of fact, or by using the law to reduce the impact of the hard questions of fact. Not only must counsel must identify the hard questions of fact and create a plan for dealing with the hard questions, they must implement the plan. This implementation occurs through out all stages of the trial, flowing from the opening statement, through the examination of witnesses, and into the closing argument.
During the opening statement counsel must take the time to introduce themselves to the jury, identifying whom they represent. Counsel often begin the opening statement by introducing themselves, this is not always the best approach. It may be the accepted practice in a particular jurisdiction to begin by introducing themselves, but just because it is an accepted practice does not necessarily mean that it should be followed without first thinking about it critically.
The judge is required to discuss the standard of proof with the jury during instructions. This conversation often occurs at the close of the case, long after counsel might benefit from underlining and reinforcing the standard, although in some jurisdictions it is also addressed during preliminary matters. It is a best practice to highlight the standard early in the trial process in the hopes that the jury will view the evidence in light of the applicable standard - when such focus benefits the client. Attorneys customarily address the standard of proof at some point during opening statements. This discussion is both legal and procedural, and while it does not directly impact the credibility of evidence or the believability of witnesses, it serves to orient the jury to the interaction of the law and the facts, laying the foundation for the argument to follow during closings. The way in which counsel addresses the standard of proof is situationally dependent, and driven by a variety of factors, to include, the strength of opposing counsel’s case, the emotional impact of the facts, the perceived way in which the jury defines the client, and the moral theme identified during case analysis which will be presented during the trial.
Closing argument is the final destination at trial, the opening statement is the embarkation point, the beginning of the journey so to speak. To begin well is to end well, and proper opening statements connect to the closing argument both directly and obliquely. During opening statements counsel must tell the jury what happened, how the law impacts what occurred, and then explain why the requested relief is the morally right thing to do. The presentation must focus on “what happened” while previewing “how” the law impacts the story, and “why” the case should be decided in their favor.
Counsel must properly balance the facts, law and morality during the opening statement. During openings the presentation should focus on the facts, telling the story in a light most beneficial to the client without ever making promises that will not be kept, misstating evidence, or attempting to improperly persuade. The law is previewed but not discussed in depth, and the moral theme of the case is present at both the beginning and end of the opening statement, while at the same time woven into the fabric of the relevant facts shared through the story of the case.
The prayer for relieve is a term used to describe the request by counsel for a specific outcome in the case. It is important that the jury hear the words from the attorney’s own mouth during the opening statement. Saying the actual words capturing the requested verdict makes them real within the court room. Properly done the prayer for relieve ends the opening statement on an emotional note that reconnects to the theme and theory of the case as it is expressed in the grabber or hook used by counsel.
Balancing the presentation properly, in light of local customs and procedural rules, normally produces an opening statement focused on the relevant facts counsel expects to prove, with sufficient mention of the relevant law to focus the critical listening skills of the jury, surrounded by an emotional, or moral, tone that makes them care about the outcome of the case.
Conclusion
In this post I've shared some ideas about drafting opening statements. Next time we'll take a look at how you should deliver them, a completely different task. Remember always that trial advocacy is an oral skill, stretching back in time to forum of Ancient Rome. We speak truth to power, persuading others - with an emphasis on the speaking part!
Till next time.
CR
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