Opening Statement: Setting the Stage

March 20, 2017Articles New Jersey Law Journal

Opening statements are often given short shrift, perhaps because N.J. R. 1:7-1 and our case law direct that opening statements are limited to a succinct statement of the legal theory to be advocated and facts proved. Because opening statements are the lens through which the jury will see the remainder of the case, opening statements should not be perfunctory. Rather, in light of the rule of primacy and recency, openings are a crucial opportunity for you to welcome the jury to your case. This article shares my thoughts on opening statements, in the hope that you will learn from some of the painful lessons I've learned.

Start at the End: Open With Your Closing

If you are trying to shape your order of proofs and provide structure to your opening, begin by practicing your closing argument. To be more precise, start practicing your closing argument well before completion of discovery. In closing counsel lays out for the jury what they've proven, what their adversary has failed to establish, lays bare their legal theory, and critically argues the inferences to be drawn from the proofs adduced at trial. If you practice your closing argument months ahead of the closure of discovery, you will learn two critical things. First, what you have to prove and, therefore, what you need to establish in discovery. Second, you will begin to shape your legal theme.

Have a Theme for Your Opening (and for Trial)

Your theme is the glue that holds the facts and legal theory together. (Some lawyers like the analogy that you are painting a picture for the jury.) In opening statements, start with your theme and attach all the facts and your theory to that theme. Picking the right theme—one that is consistent with your case and is persuasive to the jurors—is difficult. From your opening on, everything at trial is presented so that it supports your theme. If the jurors identify and accept your theme early on, this will permit many jurors to overlook some blemishes in the proofs as they are actually presented (or not presented) at trial. If you pick the right theme, the jurors will be arguing your case for you (remember the OJ defense "if the glove doesn't fit, you must acquit.")

Simplicity is Hard Work

In presenting opening, do not misstate the facts. If your presentation is too complicated, the jury may misunderstand your point. If you make it too simplistic, your adversary will note immediately where you have willfully disregarded critical evidence or the law. Making the case seem a simple one is difficult.

It is highly unlikely you have the perfect case where all of the facts and all the law line up squarely behind you—simple cases settle. Assuming you have some weaknesses, such as a dislikeable client or missing proofs, the idea of presenting a simple opening statement rapidly becomes a little more complicated. I share several thoughts: (1) be scrupulously accurate with the facts and don't overstate the evidence; (2) admit your weaknesses (bad facts); (3) don't refer to inadmissible evidence; and (4) it generally is better to be logical rather than emotional. Knowing that your adversary will also present a thoughtful opening, consider what you need to do to have the jurors seeing the issue in dispute your way. The more complicated your theme, the more likely you will lose the jury. KISS (keep it simple, stupid) comes to mind. The trick is to keep it simple, persuasive and brief.

Greet and Observe the Jurors

Greet the jurors and look at them. Smile, and consider them your friends. Too often, trial counsel treat the jurors as lepers because the lawyers are afraid of being admonished by the court. This is your courtroom too, and these are your jurors. If beneficial, remind them who you are and whom you represent.

Objections and Interruptions

When opposing counsel is making their opening statement and the trial is young, it may seem impolitic to object because you risk alienating the jury. ("Why is that lawyer objecting—what are they trying to hide?") It is true that you do risk the wrath of the court if your objection is not sustained and you risk alienating the jury, but if you do not object, you risk losing the trial (or an appeal). What statements are "out of bounds" during opening statements and warrant an objection: (1) attacks upon your client; (2) attacks upon counsel; (3) arguments that are not the law nor a logical extension thereof; and (4) complete misstatement of the conceivable facts. Frankly, if this kind of misstatement is presented, a capable trial judge will step in, but you have to be prepared to do so. You can ask for a sidebar, but by the time you talk to the judge the damage is already done and this jury may be contaminated. If the damage from an inappropriate argument is sufficient, this is clearly the time when you want to ask for a mistrial and a new jury. Alternatively, you can ask for a curative instruction, but that requires the judge to repeat the offensive comment and then ask the jury to disregard what they've just heard twice.

Exhibits and Demonstratives

Because a picture is worth a thousand words, your opening will be stronger if you can show the jury some of the proofs they will see. (Or, alternatively, indicate to them some of the evidence that your adversary will fail to adduce.) At your pretrial conference, consider raising the use of demonstratives and basic proofs during openings. To avoid drawing objections from opposing counsel or from the court, I suggest that you exchange those exhibits well before the trial date so that you know what you can use without being interrupted as you lay out your opening statement to the jury. If you are not permitted to show a demonstrative or any of the exhibits, consider bringing an easel to write down key points you want the jury to dwell upon. Most jurors learn better by seeing and hearing rather than by just listening—you want to have the jurors using all of their senses as soon as possible in the trial.

Strategic Considerations

In your case, you have a cast of witnesses supporting your argument, including expert witnesses. In addition, you will have documents establishing key facts. Opposing counsel will have a cast of witnesses offering contrary facts and likely will have witnesses responding to yours. Because you have labored for months in written discovery, depositions and motion practice, you will know each of the characters on your side and each of those opposing your position. To the jurors, however, all of this is new. Opening statements are your opportunity to lay out the cast of characters like a playbill for a Broadway production, briefly describing the case and the role that each witness will play.

Some important considerations are whether your case is stronger on the law supporting you or on the facts. Will the jurors like your client or your adversary? If your client is unlikeable, or your opposing counsel is a polished affable adversary, how do you address these problems in the course of opening and in your trial? In general, you want to use your opening to precondition so that they have a structure in which to fit the evidence, which you have introduced them to during your opening.

Things Not to Do During Opening

Because the jurors walk in not knowing whom to believe, your credibility is paramount. Avoid the following in opening statements:

• Don't overpromise and under-deliver.If you commit that you will prove certain facts, make good on that commitment. (Worst case, if you fail because the evidence you intended to adduce is not allowed, admit later that you failed but that you've proven the same point some other way.)

• Don't attack your adversary or the opposing party.There is an unfortunate trend in New Jersey that counsel are attacking both the lawyers and opposing party during opening statements in state court. Although this poisoning of the well is effective, I sincerely hope that trial judges will not continue to tolerate this behavior.

• Don't blow off preparation for opening statements or count on a stilted mechanistic statement of your position and the facts. First, if you are plaintiff and fail to state facts and law that you intend to prove, defendants can move for dismissal at the close of your opening. Second, and more importantly, opening statements are not a mere mechanical exercise. Rather, this is your first and best opportunity to have the jury see the entire case and all the coming evidence in light favorable to your client.

• "What I say is not evidence." Expunge this from opening statements. Yes, it's true that what counsel say is not evidence, but the court will make that point for you if it is necessary. Using this phrase permits the jury to simply disregard everything because you say because you've just implied that what you said is not true.

• Don't forget primacy and recency. People remember the first and last things that they hear. Knowing this, consider how you structure your order of proofs and statement of your theme to the jury.

• Don't avoid practicing. Although you do not want your opening to seem rehearsed or insincere, I strongly suggest you candidly discuss your trial theme with anyone who will listen. Discuss it with your partners, your friends, your spouse and strangers at a local bar. I suggest this because you need to know if you are too wedded to your own take on the facts. For example, if you are a defense lawyer, consider asking a plaintiff's lawyer friend to come in and discuss the themes. Discussing it with someone at a local bar is helpful because they do not owe you any consideration arising from friendship or office politics. If you care about your case, you want to hone your theme and hear opposing views so that you can sharpen your own.

Conclusion

Each of these "rules" is made to be broken. Use your judgment and develop your own style of trial practice. Coming up with a coherent and persuasive theme for opening statements is hard work. As difficult and time consuming as it may be to hone your theme, this effort is the difference that will have the jurors reciting your theme as they walk back to deliver the verdict. Although it may not work for your commute, I practice my openings and closings as I am driving back and forth to work. (My trusty dog Lilah enjoys a spirited debate—or at least she has not told me otherwise—and it entertains other drivers to see the crazy lawyer talking to himself.)

Reprinted with permission from the March 20 issue of the New Jersey Law Journal. (c) 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.