Opening Statments

“The opening statement outlines the case it is intended to present. The attorney for plaintiff delivers the first opening statement and the defense follows with the second. A good opening statement should explain what the attorney plans to prove, how it will be proven; mention the burden of proof and applicable law; and present the events (facts) of the case in an orderly, easy to understand manner.” Mock Trial Material from State of Oregon v. Dulsa (2017-18 Season)

An opening statement is not an argument or a discussion of the law, but rather tells the jury what the evidence will show and serves as a road map for the jury to follow. Objections by the opposing counsel are not permitted.

What to know before drafting an opening statement

• Can you tell a brief story about what happened from your side’s point of view?
• What is your theory of the case?
• What are the key elements that have to be proved (by you or the other side)?
• What do you anticipate the evidence will show?
• What are the important facts your side’s witnesses will testify to?
• What themes (words and phrases that convey emotions) do you want to emphasize?
• Who has the burden of proof and what is it?
• What do you want the jury to do?
• How much time do you have? (usually 5 minutes)

Anatomy of an opening: the basics

1. AnIntroduction:
   • Attorney identifiesthemself (or not)
     • A typical introduction:“Your Honor, members of the jury, my name is (full name), representing the prosecution/defendant in this case.”
     • If they have already been introduced, some attorneys just go right into their opening to save time, create drama, and make it look more like a real trial.
   • A theory of the case
     • One or two sentences which tell the jury what your case is about
     • “My client, Landry Lopez, was fired for reporting an illegal activity to his employer, the restaurant Buddies Burgers.”
   • Briefly tell the jury why they are there
     • “This case is brought under Oregon whistle blower law, which prohibits employers for retaliating against employees who have a reasonable belief that an illegal activity has occurred and report it. ”
2. A brief overview (story)of what the evidence will show
   • Presented from your side’sperspective
   • Purpose is to give the jury the big picture
   • “The facts of this case are straightforward. The evidence will show that on May 5, 2016, Landry Lopez saw . . .”
3. A brief explanation of what has to be proved
   • “Under Oregon whistle blower law there are three elements that must be proven. First . .”
4. Identify the witnesses
   • “We will call three witnesses: Landry Lopez, Sam Jackson, a former Buddies Burgers employee, and Tyler Erickson, a journalist student.”
5. Tell what the key testimony of each witness will be
   • “Mr. Lopez will tell you that . . .”
   • “Next, Plaintiff will call Ms. Jackson, a former BB employee . . “.
   • “Finally you will the testimony of Tyler Erickson, who was with Mr. Lopez . . . “
6. A conclusion
   • Discuss the burden of proof (some put this near the beginning)
     • “This is a civil case and Plaintiff Landry Lopez must prove his case by a preponderance of the evidence.” (Explain briefly and illustrate with hands what a preponderance of the evidence means)
   • Restate the theory of the case
     • “Oregon’s whistle blower law exists to protect, and encourage, employees to report illegal activity in the workplace. Mr. Lopez engaged in such whistle blower activity and was fired for doing so. “
   • Tell the jury what you want
     • “For these reasons, after you have heard all the evidence, at the end of this trial we will ask you to return a verdict in favor of Landry Lopez.”
     • “At the end of the trial the State of Oregon will ask you to find the Defendant guilty of . . . . .”
     • “Based on the evidence you will hear, at the end of the trial the Defendant will ask you to return a verdict of not guilty

Going Deeper: Ways to Improve the Opening Statement:

• In a Mock Trial the attorney is judged on:
  • Substance and technique . . . AND
  • Performance and style
    

  Substance and Technique

  1. Keep revising your opening until it is exactly as you want it
     • Opening statements go through many edits and revisions
     • Seek out the input from others
     • Try things out – if they don’t work, don’t use them
  2. Consider a hook in the introduction
     • A hook is a sentence or very short paragraph in the introduction which serves as an attention-grabbing element
     • The effectiveness of the hook is defined by its ability to interest and motivate the jury to listen more closely
     • The hook should arouse interest but not be argumentative
  3. Tell a good story
     • Story telling is at the heart of a good opening
     • A story paints a vivid picture – walk jury through it with each witness
     • Use active voice
     • Use language that reinforces your themes
     • Create interest but don’t tell everything
  4. Do not argue the case
     • The opening statement is not an argument
     • Do not argue the facts or law
     • Save arguments for closing
     • It is OK to state and develop your theory of the case
     • Stick with what the facts w ill show a nd what they will not show
  5. Use future tense when talking about what the evidence will show
     • Proper phrasing includes statements like:
       • “The evidence will indicate that . . .
       • “The facts will show that …”
     • Use a few of these lines but not too many, don’t overdo it
  6. Stay in control of the picture you paint in the jury’s mind
     • Everything you say should have a purpose
     • Don’t ask questions during opening statements (it allows the jury to come up with answers you might not want)
     • Do not waste your time on unimportant things or go into excessive detail (may make the jurors lose focus)
     • Use descriptive emotional content in describing the most important facts
  7. State the facts affirmatively – do not negate the other side’s facts or position
     • The more you repeat something the more it is remembered and believed
     • If you say the evidence will show that“Mrs. Smith did not run the red light,”the‘not’is lost.
     • The jury remembers the phrase“ran the red light”
     • Instead say the evidence will show“Mrs. Smith came to a complete stop at the signal.”
     • The jury remembers “came to a complete stop at the signal.”
  8. Personalize your side’s witnesses
     • Use their names
     • Depersonalize the opposition’s witnesses with language like‘Defendant”or“Plaintiff”
  9. The Prosecution in a criminal case is the Government
     • Don’t be shy to take on this role
     • Refer to yourself“The State of ___”not just the“prosecution.”
  10. Talk about facts that are not in dispute (look at the stipulations)
      • “There are certain facts in this case that are not in dispute . . . “
      • “The Defense/Prosecution have agreed . . .”
      • “The parties have agreed that . . . “

  Performance and Style

  Body language is a very powerful tool. We had body language before we had speech, and apparently, 80% of what you understand in a conversation is read through the body, not the words. – Deborah Bull, English dancer, writer, and broadcaster

  1. Practice, practice, practice
  2. Find your focus, energy and commitment
  3. Memorize the Opening Statement
     • Memorize content, movement, inflections, and gestures
     • This will maximize the points you will get
     • If notes are needed
       • Use them sparingly
       • Use a legal pad or clip board so they do not flop around
  4. Talk directly to the jury
     • Look them in the eye
     • Educate them about the case
     • Move closer (5-10 ft.) but not too close
     • Be natural to keep their attention
  5. Use conversational language that is engaging
     • Let the type of case dictate your style and tone
       • Example: A prosecutor might want to be more forceful whereas a defendant might want to evoke sympathy
     • Use legal terminology sparingly
  6. Use body posture and movement deliberately and consciously
     • Maintain upright body posture (do not slouch)
     • Keep shoulders back to show confidence
     • Stay balanced
     • If you move, make the movement coincide with transitions between points
     • Try not to change position more than 7 times in 5 minutes
     • Try not to fidget or have unnecessary gestures or body movements
  7. Use gestures
     • Use gestures to create interest and drama
     • Gestures include the give, the show, the tell, and signposting
     • Don’t shy away from pointing to individuals in the court – the type of point may vary
       • If you are the prosecution and point to the defendant it will be using a harder accusatory “tell” gesture with a pointed finger
       • If you are pointing to your own witnesses it will be using an inviting open handed “give” gesture
  8. Act professional and confident – even if you are nervous