From the Multnomah Lawyer: Tips from the Bench – Replace Your Opening Statement with a Story

“Mary Atkins was an athletic mother of two who enjoyed trail running in her spare time. A moment of sound, light and force altered her life forever.”

Let me tell you an opening story.

Attorneys have few chances to try cases. Statistics consistently show that around 95 percent of lawsuits settle. Less trial experience provides fewer chances to learn from one’s mistakes. This article details some common mistakes I’ve seen in opening statements. At the same time, I want to encourage you to think of your opening statement as the beginning of a story. The jury writes the ending and you want to lead them to (your) obvious conclusion.

Just before taking the bench, I sat in on an extremely smart and competent lawyer’s opening for an asbestos case. She talked for 20 minutes about the science of contracting mesothelioma, never mentioning her client. It was intellectually interesting but lacked emotional force. It was disconnected from an actual person. Almost all plaintiffs’ cases are first and foremost about people and how they’ve been harmed by the other side.

“Mr. Jackson died on a hospital bed, his once healthy body rotting from within from years of working with asbestos. His death was tragic...and completely avoidable.” In two sentences, one can get a jury’s attention and get them thinking about the big picture items that are most important to your case. Who is Mr. Jackson? How did this happen? Why was it avoidable? Who should be held responsible? A strong theme helps focus a jury.

Think of a theme as a one-to-two sentence description of your case that can be returned to and touched upon throughout the trial. Ask questions of witnesses that will evoke your theme. In the asbestos example, one might ask an expert what could be done to “avoid” such a disease? The answer “not work with asbestos” can be tied into how the situation could have been avoided if the plaintiff received adequate warnings. Hitting a theme early in an opening statement allows repetition throughout the trial. Repetition aids jurors’ memory.

An opening should also touch upon the law and the legal requirements of your claim, but this is less interesting to the jury. Discuss such matters somewhere in the middle or end of an opening. You can return to the legal requirements with more force and detail in closing.

The following are some examples of “mistakes” I have seen in opening statements. Not everyone will agree that they are mistakes, but I believe they weaken an opening.

“May it please the court, counsel and members of the jury.” 
Lawyers often open with some variant of this. It is unnecessary filler, overly formalistic and boring. Strive to have your very first sentence grab the jury’s attention, much like the opening scene of a blockbuster movie.

“The evidence will show that Mr. Stevens was driving 50 miles per hour in a 35 miles per hour zone when he ran into the back of my client’s car. You will hear Dr. Paidalot state that this led to a number of soft tissue injuries and nerve damage for my client.”

A jury is instructed that opening statements are not evidence, but an outline of what the evidence will show. Reminding a jury of this in opening serves as verbal speed bumps in the path of your story. Simply put, it isn’t needed. Eliminating such language increases the force of your assertion:

“Mr. Stevens was flying down the road at 50 miles per hour that day, either ignoring or oblivious to the posted speed limit of 35 miles per hour. Ms. Johnson never knew what hit her. The force of the impact caused serious and ongoing pain. She has made repeated visits to doctors trying to, hoping to, regain the life she had before the accident.”

I realize the word “flying” is more of a characterization than a fact. An attorney could object, but don’t be overly fearful of this. First, many attorneys don’t object during openings, (more on this below). Descriptive words make a story more interesting. They make an opening sound more like a natural conversation. The key of course is moderation. Too much characterization runs the risk of turning an opening into an argument. Best to come close to, but not over, the line.

Statements akin to testifying or vouching; “I believe, I think, etc.”
I once heard a civil lawyer say: “My client claimed she had a back injury, but I wanted to make sure, so I had her evaluated by a specialist and I learned her injuries were legitimate!”

An attorney is not a witness in the case. It is objectionable to state personal beliefs or what you “did” in a case. The above statement combines testimony of a non-witness and improper vouching for the plaintiff ’s veracity.

Oregon Rule of Professional Conduct 3.4(e) prohibits lawyers from asserting “personal knowledge of the facts in issue except when testifying as a witness” or from stating “a personal opinion as to the justness
of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused...” I suggest reading United States v. Young, 470 U.S. 1 (1985) for a thorough analysis of what constitutes improper attorney comments during arguments under the ABA Model Code of Professional Responsibility. The Model Code language is very similar to the Oregon Rule of Professional Conduct.

Failing to object.
Counsel did not object in the above case. I would have sustained an objection. It is nice to have a collegial bar, but there are times when it is appropriate to object during an opening or closing.

The overly cautious opening.
The evidence will never be exactly as you outline it in opening. Never. Witnesses say odd things and judges make rulings you weren’t expecting. Don’t worry too much about this. If you have a good faith and articulable belief that evidence will be consistent with your opening, don’t hesitate to jump in and assert what the case is about. The jury won’t hold minor discrepancies between your opening and the actual evidence against you. That said, be ready to improvise and acknowledge later that some evidence came out differently than what you said in opening. This acknowledgement helps gain the jury’s trust. Juries are willing to forgive mistakes if they don’t seem to be intentional gamesmanship.

As a final thought, practice your speaking skills. If you have time, join Toastmasters International. Practice your openings in front of a significant other, in the car or anywhere else. Talking aloud, with or without an audience, allows you to change components as you hear for yourself how they sound. That which seemed brilliant in your mind may seem less so to your ears. Rather than write out a full opening, write an outline. You don’t want to be too tied to a precise recitation, allow some room to improvise.

I look forward to hearing your story.

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