Jury Research Services   Articles: "Opening Statements"

Reprinted with permission of Defense Practice Notebook (1996), 1, 76-78.

The opening statement is a valuable contributor to the persuasion process at trial. Through opening statements, each side lets the jury know what evidence they will present and what this evidence is supposed to prove. This is the primary opportunity for attorneys to present their positions to the jury prior to the introduction of the evidence upon which the jurors will base their decisions.

An opening statement provides the framework through which jurors should view a case and process evidence. Information that fits into the framework is easily remembered. Thus, a major battle is won when the attorney gets the jury to view the evidence in the case from his or her perspective.

Every trial attorney should be acquainted with the elements of a persuasive opening.

Persuasive opening statements present a clear theme of the case. A good theme provides the jurors with both the conceptual framework for the facts and the emotional undercurrent for the case. Themes should be short and concise. A good rule of thumb is to think of a short phrase or sentence that jurors could use to answer the question, "What kind of case are you sitting on?" For example, "This case is about a lawnmower owner who ignored the manufacturer's warnings," would be a potential theme in a products liability case.

Persuasive openings are well organized. This is not as obvious as it sounds. The theme is reinforced by the content of the presentation and manner in which it is made. Consider the order in which key information or points are presented. Information is remembered best when encountered first or last, respectively. As a rule, information encountered in the middle of a presentation is remembered least well.

Effective opening statements take advantage of persuasive techniques such as rhetorical questions, carefully weaving them into the fabric of the presentation. Rhetorical questions help guide the jurors' search for answers and sometimes imply answers on their own. For strong cases, placing rhetorical questions near the beginning of the statement is persuasive. However, for weak cases, rhetorical questions placed in the beginning of the presentation reduce persuasion because the answers to these questions are either not forthcoming or are equivocal. Rhetorical questions at the end of the opening statement are also effective when they address the weak points of the opponent's case. In addition, rhetorical questions can help organize the information being presented by telling jurors what topic/issue they will be encountering next, e.g., "What did the plaintiff do next?"

Inoculation is a technique which increases the resistance to persuasion. As the name implies, this technique is analogous to the medical technique of inoculating patients to increase their resistance to disease. Inoculation in persuasion occurs by exposing jurors to a weakened version of the opponent's arguments and successfully refuting these arguments, thus making the jurors aware of counterarguments to the opponent's position. When the opponent later raises the argument, jurors are able to resist it more successfully.

Persuasive opening statements enable the jurors to see the case from the client's perspective. They recreate the events as seen through the client's eyes. This focus enables jurors to have greater empathy for the client. An effective opening statement will put the jurors "in the party's shoes" and walk them through the case.

Persuasive opening statements do not ignore problem areas in the client's case. Damaging evidence is anticipated and discussed. The "sting" of this evidence is removed by portraying it in the best light. Not only is the impact of the evidence attenuated, but the attorney is viewed as being more open and honest by jurors.

Effective opening statements call into question the credibility of critical opposing witnesses, where possible. Knowing in advance that witnesses have credibility problems in their testimony strengthens the listener's resistance to persuasion by those witnesses, thus reducing their effectiveness.

Good opening statements take advantage of the fact that jurors must understand key legal terms before they view the case in order to integrate properly the information. Discuss key terms in language that jurors can understand. However, noncritical legal terms and procedures or long digressions as to the law detract from the persuasiveness of the presentation and should not be included.

A persuasive opening statement is presented with confidence. The language is "powerful." It is direct, not qualified. The choice of words and phrases used is important. Descriptive words which are differentially "loaded" produce different perceptions in the minds of jurors. Persuasive opening statements take advantage of this fact by using words that have a favorable psychological impact.

Finally, the attention level of the jurors at the opening statement stage is at one of the highest points during the trial. Persuasive opening statements capitalize on this fact by making full use of the statement and not shortchanging the presentation.

With the described features in mind, here are 13 recommendations for a successful opening statement.

Start with your theme. Ideally, the opening statement should start with a clear statement of the theme of your case. The theme should be short, consisting of a one- to two-sentence statement which sets out the factual and emotional bases for the case. The theme should be reinforced during the presentation by restating it, particularly near the end of the statement.

Be clear and organized. Present your opening statement in a clear and organized manner. Do not confuse the jury. Digressions detract from the impact of the statement and should not be included. Simplify complex material by telling jurors how you will cover this material and its significance to the case in advance of a full discussion of it.

Pay attention to the language used. Project confidence in your case by being direct and using a "powerful" style. In addition, choose key phrases and words carefully. Use words that maximize desired impact.

Do not overstate your case. Present a detailed, powerful but realistic picture of your case. Overstatement of your case can be detrimental, particularly if the opponent points out these overstatements in closing arguments to the jury.

Start strong and end strong. Capitalize on primacy and recency effects by starting and ending your opening in a strong manner. For important points you want remembered in the middle of the presentation, do something which increases the jurors' attention, e.g., draw on a blackboard, use a flip chart, or simply move away from the podium (change of location). This variation in presentation will produce immediate increases in attention.

Choose the time for rhetorical questions carefully. For strong cases, rhetorical questions are best placed near the beginning of the presentation. For the less strong cases, rhetorical questions are best placed near the end. It is also beneficial to place rhetorical questions near the end of the presentation to focus the jurors' attention on the weaknesses of the opponent's case. Finally, use rhetorical questions to help organize the information contained in your presentation.

Inoculate jurors as to the opponent's major arguments. Where possible, anticipate major arguments or theories of your opponent. Address them in a weakened form and refute them. This will enable jurors to be more successful in resisting persuasion on these points.

Anticipate problem areas of your case. Disclose problems such as damaging evidence which you expect to appear at trial. Take the sting out of these problems by briefly addressing them and putting them in the most favorable light.

Briefly discuss key legal concepts. Show how the evidence can be favorably applied to these key concepts or terms. However, discussion of legal procedures is best left to the judge since it will detract from the persuasiveness of the presentation. Never start your opening statement by saying, "What I will say is not evidence"; there is no need to tell jurors to ignore you.

Use physical evidence. A few important items of physical evidence will help the jurors better understand your presentation. Summary charts, time lines, organizational charts, and other demonstrative evidence can enhance the verbal presentation. In addition, the jurors' interest and attention will be increased by the introduction of this material.

Do not hide behind the podium. Do not use the podium as a shield behind which you hide from the jurors. Leave the podium to demonstrate critical events. The movement will increase the jurors' attention and, more importantly, facilitate their understanding of the event.

Remind jurors of commitments. During the course of voir dire you should have jurors commit to certain positions, e.g., being fair or not holding something against the client. Reinstill this commitment by reminding them of their promises.

Do not waive opening statements. Opening statements rarely should be waived or deferred. By waiving an opening statement, the attorney risks the jurors' adopting the opponent's view of the case at the outset of trial.

Opening statements play a key role in communicating the framework of how jurors should view the evidence. Persuasive opening statements contain many common features. By paying attention to these features and using the recommendations contained in this article, you can consistently present persuasive opening statements.

Remember to take a flexible approach concerning these features and recommendations. They must be tailored to fit each case, given its unique characteristics.

While opening statements do not win cases by themselves, they prime the pump for success. Take advantage of this opportunity to gain the upper hand at the outset of the trial.

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