Chapter 4 OPENING STATEMENT

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Chapter 4

OPENING STATEMENT

? 4.01 INTRODUCTION

After the jury has been selected, the parties give their opening statements. The opening statements introduce the jurors to the parties' competing theories of the case. Opening statements generally are fairly short, and focused on the key facts you will present. They are told in chronological order, as much like a story as possible. Opening statements help jurors understand the nature of the dispute, focus on the key evidence, and place witnesses and exhibits in their proper context.

There are four main purposes to be accomplished in opening statements:

Present a clear picture of the case -- its major events, participants, instrumentalities, disputes and contentions.

Arouse the interest of the jurors in your case and general theory so that they want to hear your evidence. If jurors become bored (or worse, if they become antagonistic), they may be inattentive while you present your witnesses.

Build rapport with the jurors, speaking to them as intelligent people and communicating your sincere belief in your cause. This continues the process of establishing bonds with jurors that was begun in the voir dire.

For the defense, the opening statement presents the opportunity to alert jurors that there will be two sides to the case so they do not make up their minds too soon.

Many trial practitioners assert that the opening statement is the most underrated and overlooked part of the case. While you may have been able to begin to talk about your case in voir dire, this is your first opportunity to present it as a cohesive whole. While you cannot expect jurors to reach a decision in your favor based solely on your opening remarks, you can make effective use of the principle of primacy to begin this persuasion process. Too often, lawyers squander this opportunity to present their theory and highlight the pivotal evidence. Instead, they choose to read the pleadings, bury the important facts in a boring mass of trivial details, sacrifice coherence to plod through a witness-by-witness summary, ignore the facts in favor of broad generalizations, or waive opening altogether.

Proper opening statements are not arguments, although you occasionally will hear them referred to as such. Opening statements are supposed to be limited to informing the jury of the facts you intend to prove. The temptation to argue -- to discuss legal standards, debate the respective credibility of witnesses, make inferences, and speak in broad terms about justice and truth -- may be almost irresistible at times. Not only is succumbing to temptation objectionable; it may not be wise. After all, it was the evidence that convinced

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you to go to trial, and it will be evidence that carries the jury. This is your opportunity not to tell the jurors that you have the evidence on your side, but to show them. As Lloyd Stryker, one of the great trial lawyers put it, "Evidence itself is eloquence, and the facts, if properly arranged . . . will shout louder than you possibly could."1

The most common problem seems to be that lawyers cannot resist overstating the evidence. Over 100 years ago, the first treatise on trial practice warned:

[Never] overstate the evidence. Clearly right as this rule is, few are more often violated. Advocates very frequently exaggerate, and the result is generally disastrous, for jurors are quick to resent what they conceive to be an attempt to deceive them. Not only this, but they are very apt to think that all that is stated must be proved or else no case can be made out, and when the proof falls short of the statement they are quite likely to conclude that the advocate has no case. There is yet another reason supporting this rule, and that is this: where the evidence is stronger than the statement, the advocate secures credit for modesty and candor, and these are great virtues in the eyes of the jurors. It is never to be forgotten in stating the facts that keen and hostile eyes are watching, and that an unrelenting enemy is on the alert ready and eager to expose the least misstatement or mistake. It may be that the Roman priests were . . . able to deceive Jupiter by chalking over the dark spots of the sacrificial bull; but, if they were, he was not so keen-eyed as an opposing counsel is likely to be, for chalking dark spots in a statement of facts will not deceive him. Fictions will not supply the place of facts.2

NOTE

How important is the opening statement? In Charles Becton and Terri Stein, Opening Statement, 20 TRIAL LAW. Q. 10, 10 (1990), appears the following statement: "Empirical studies conclude that after hearing opening statements, 65 to 80 percent of jurors not only make up their minds about the case, but in addition, in the course of the trial, they do not change their minds." This oft-repeated assertion is false. See William L. Burke, Ronald L. Poulson, and Michael J. Brondino, Fact or Fiction: the Effect of the Opening Statement, 18 J. CONTEMP. L. 195 (1992). Jurors do not make up their minds during opening statements (before they have heard any evidence). This piece of misinformation is usually attributed to the research of the University of Chicago Jury Project, but no actual source is ever cited, and all that the Chicago Jury Project found was that "the real decision is often made before the deliberation begins." Most jurors reach a tentative decision at the end of the trial, after closing arguments, and most verdicts reflect the majority's tentative decision. HARRY KALVEN & HANS ZEISEL, THE AMERICAN JURY 488?89 (1966). According to the late Hans Zeisel, no data were ever collected

1 LLOYD PAUL STRYKER, THE ART OF ADVOCACY 53 (1954). 2 BYRON K. ELLIOTT & WILLIAM F. ELLIOTT, THE WORK OF THE ADVOCATE 206?07 (1888).

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? 4.02

EXAMPLE OF AN OPENING STATEMENT

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that could support a conclusion that jurors make a decision after opening statements.

? 4.02 EXAMPLE OF AN OPENING STATEMENT

It is difficult to provide you with a representative opening statement, because their length and detail vary widely with the complexity of the case. The more complicated the case, the longer and more detailed your opening will need to be. However, the following example, 3 presents the issues discussed in this chapter, and should give you a feeling for the scope and organization of a typical opening statement.

May it please the Court, and you, Ladies and Gentlemen of the Jury: Our defense is that the witnesses for the State who have attempted to identify Anthony Zirille are mistaken. This man, Anthony Zirille, was nowhere near the scene of this hold-up when it occurred. As a matter of fact, he was more than 35 miles away. Like many a mystery, this one is a case of mistaken identity.

Anthony Zirille is a hard-working young man from Niles. He lives with his mother and younger sister while he works two jobs to try to save money for college. He wants to become the first member of his family to attend college. All that is threatened now, because he finds himself accused of a robbery. But accusations are not evidence, and the judge will instruct you that the state must prove his guilt beyond a reasonable doubt with evidence.

What will the evidence show? It will show that the crime was committed by two men who arrived and fled in a sport utility vehicle. Anthony Zirille owns no S.U.V.

It will show that the hold-up men were armed. Anthony Zirille owns no gun, and no gun was ever found that can be connected to him.

It will show that the crime happened way down here [pointing to location on a map] south of the city on Western Avenue, about midnight. At midnight, Mr. Zirille was at his second job at a tavern and restaurant on Deerfield Road in the town of Niles [pointing to location on a map]. That is about 30 miles northwest of the scene of the crime. Anthony Zirille's working hours at the restaurant were from 6 p.m. to midnight. The testimony of the restaurant owner and two other witnesses who were patrons of the place will be that on the night in question, March 13, Anthony worked steadily from 6 o'clock in the afternoon until midnight. At midnight, when the robbery was taking place, Mr. Zirille was walking to the parking lot toward his car. He drove home. He lives here [pointing to map] with his widowed mother and sister at Orleans Street, on what is known as the near north side, about 7 miles away from where this hold-up occurred. Mr. Zirille arrived home about 12:30. His mother was sitting up for him and will testify he arrived home at that time. His sister, who was 14 years old,

3 Portions of this example are adapted from FRANCIS X. BUSCH, LAW AND TACTICS IN JURY TRIALS, vol. 2: 840?41 (1959).

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was asleep. She is not allowed to stay up that late, so she did not see him until the next day at noon, when she got home from school.

Anthony Zirille will take the stand, and face you and the prosecutor, and tell his story. He knows nothing of this hold-up and will swear to you that he had nothing to do with it. He has been brought up and has always lived on the near north side. He had no business and no friends or acquaintances on the south side, and has never had occasion to be and never has been in the neighborhood of 115th Street and Western Avenue where this hold-up occurred. The witnesses who claim they can identify him based on a fleeting glimpse of a robber in the dark of night are mistaken. Based on this evidence I shall ask and expect you to return a verdict of not guilty.

NOTE

Other examples. Many other examples of opening statements can be found in LEONARD DECOF, ART OF ADVOCACY -- OPENING STATEMENT (2001), ALFRED S. JULIEN, OPENING STATEMENTS (1980); RICHARD J. CRAWFORD, THE PERSUASION EDGE 118?37 (1989); JAMES W. JEANS, LITIGATION ?? 9.30?9.31 (2d ed. 1992); and FRED LANE, LANE'S GOLDSTEIN TRIAL TECHNIQUE ?? 10.73?10.76 (3d ed. 1984).

? 4.03 OPENING STATEMENT LAW AND PROCEDURE

[A] RIGHT TO MAKE OPENING STATEMENTS

The giving of an opening statement is so well established as part of the adversary system, that it probably rises to the level of a right. In United States v. Stanfield, 4 the court stated:

The practice of permitting attorneys to make opening statements is a practice long accepted as established and traditional in jury trials. It has the practical purpose of directing the attention of the jurors to the nuances of the proposed evidence in such a way as to make the usual piecemeal presentation of testimony more understandable as it is received. . . . We strongly believe that the well established and practical custom of permitting opening statements by counsel at jury trials in criminal cases should be continued in the district courts of this circuit.

In most cases in which an opening statement is requested but denied (at least in jury trials), the courts have held that an important part of the right to be heard has been withheld that warrants reversal in all but the strongest cases.5

The right to make an opening statement is not a constitutional one, however. Unlike closing argument, it is not among the traditions of the

4 521 F.2d 1122 (9th Cir. 1975). 5 E.g., McGowen v. State, 25 S.W.3d 741, 744?45 (Ct. App. Tex. 2000).

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adversary fact-finding process deemed necessary to a fair trial. Consider United States v. Salovitz:6

Some States provided by statute that [a criminal] defendant might open after the prosecution had completed its case. Others provided that the defendant's opening might be made immediately following the prosecution's. Other States gave the defendant the option of opening either before or after the prosecution's proof. Some States permitted the defendant to exercise the option of reserving his opening statement until the close of the State's case only if the defendant was going to present evidence. Still other States, of which Connecticut is one, permit the trial court to decide in its discretion whether a defendant may open at all. . . . We have held in a civil case that "opening is merely a privilege to be granted or withheld depending on the circumstances of the individual case."

[In criminal cases,] the Constitution requires no more than that trials be fairly conducted and that guaranteed rights of defendants be scrupulously respected. . . . We believe that an opening statement by the defendant is not such a guaranteed right, and that the making and timing of opening statements can be left constitutionally to the informed discretion of the trial judge.

Because the right to open is not constitutional, it is subject to time limits 7 and other restrictions, and courts have said it can even be refused in nonjury trials or simple cases. 8 Where openings are permitted, a party generally has the right to make his opening statement without interference from or adverse comments by the judge.9

[B] PROCEDURE

Opening statements customarily are given after the jury has been selected and sworn and before any evidence is produced. The party with the burden of proof -- usually the plaintiff or prosecutor -- gives the first opening statement, followed by the defense. The defense customarily has the option of postponing (reserving) the opening statement until the beginning of its presentation of evidence. In most jurisdictions, statutes or court rules determine the order and timing of opening statements. Michigan Court Rule 2.507 is typical:

Opening statements. Before the introduction of evidence, the attorney for the party who is to commence the evidence must make a full and fair statement of that party's case and the facts the party intends to prove. Immediately thereafter, or immediately before the introduction of evidence by the adverse party, the attorney for the adverse

6 701 F.2d 17 (2d Cir. 1982). 7 E.g., United States v. Gray, 105 F.3d 956, 962?63 (5th Cir. 1997) (3 minutes each for three co-defendants upheld in simple case); Glenn v. Cessna Aircraft Co., 32 F.3d 1462, 1464 (10th Cir. 1994) (10-minute limit upheld). 8 United States v. Five Cases, More or Less, Containing "Figlia Mia Brand," 179 F.2d 519 (2d Cir. 1950). 9 See, e.g., United States v. Frazier, 580 F.2d 229 (6th Cir. 1978).

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party must make a like statement. Opening statements may be waived with the consent of the court and the opposing attorney.

Even when a statute seems to set a specific order for opening statements, the trial judge has discretion to change the order of opening remarks in unusual circumstances. 10

One such unusual situation is a multi-party lawsuit. Where several attorneys represent multiple plaintiffs or defendants, or the case involves a thirdparty complaint, the order of statements customarily is resolved among the parties at pretrial conference. If the parties are unable to set the order themselves, the trial judge will do so. The party with the most to gain will usually go first for plaintiffs, and the party with the primary liability or the largest financial exposure will usually go first among defendants. Attorneys representing multiple defendants might be allowed the customary option of reserving their openings until the start of their own cases, but this can result in unfairness if one defendant opens immediately following plaintiff, and another waits until the start of the defense case. For that reason, most judges will require that multiple parties arrayed on one side make their opening statements all at one time.11

Jurisdictions differ on whether a party may waive its opening statement altogether. Some states require the party with the burden of going forward (the plaintiff in most cases) to give an opening statement; 12 others permit the plaintiff to waive it. Almost all states permit a defendant who does not have a burden of proof to waive opening remarks, although a few require statements from both sides even in criminal cases.

In some jurisdictions, each party with a burden of going forward with evidence is required to make a complete opening statement demonstrating that it has enough evidence for a legally sufficient case. Such opening statements must include enough facts to make out a prima facie case on all essential elements of the claim or defense.13 Failure to state a case may result in dismissal, nonsuit, or a judgment as a matter of law against that party before any evidence is introduced. Such a drastic resolution of the case threatens to deprive a party of its basic due process rights to be heard and to present evidence, so a judgment as a matter of law will be granted only if it appears that counsel has stated all of his or her evidence and has been given the opportunity to supplement the statement with additional facts to satisfy this requirement. 14 Courts exercise this power sparingly, and the law prefers that the case be tried on the merits. 15 The courts are split on the

10 See, e.g., Cal. Civ. Proc. Code ? 607 (the trial must proceed in normal order "unless the court, for special reasons otherwise directs"); State v. Guffey, 468 P.2d 254 (Kan. 1970) (court has inherent discretion to vary order seemingly required by statute).

11 See Commonwealth v. Weitkamp, 386 A.2d 1014 (Pa. Super. 1978) (codefendants being tried together must all open at the same time).

12 See, e.g., Rev. Stat. Mo. ? 546.070(1). 13 E.g., People v. Kurtz, 414 N.E.2d 699 (N.Y. 1980). 14 See Commonwealth v. Lowder, 731 N.E.2d 510, 518 (Mass. 2000). 15 See Giles v. Amer. Family Life Ins. Co., 987 S.W.2d 490, 492 (Mo. Ct. App. 1999) (procedure is highly unusual and rarely justified).

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propriety of such a drastic procedure, and many do not approve of summary disposition based only on opening statement.16

[C] THE CONTENT OF OPENING STATEMENT

The purpose of an opening statement is to inform the jurors in a general way of the nature of your case so that they will be better prepared to understand the evidence. You are supposed to limit yourself to a discussion of the anticipated evidence and what the main issues are.17 You may not argue about how to resolve conflicts in the evidence, nor discuss how to apply the law to the facts, nor attempt to arouse the emotions of the jurors. How strictly these limits are enforced, however, is a matter usually left to the discretion of the trial judge. Some judges permit the attorneys wide latitude to discuss their cases; others will more strictly enforce the general rules concerning what one may and may not say during the statement.

[1] The Prohibition Against Argument

The most basic rule of opening statements is that "argument" is prohibited.18 The rule is easy to state, but it is hard to define argument precisely. With respect to statements of fact, there are two rules of thumb:

If it is something you intend to prove, it is not argument. If you make a statement that is not susceptible of proof, it is argument. 19

Whenever you make a statement, if a witness could take the stand and make the same statement, it is not argument. However, if the rules of evidence would prevent such testimony, or if no such witness exists, the remarks are argumentative.20

Neither of these statements is complete. Many jurisdictions also allow an attorney to state his or her legal claim or defense, at least in basic terms, 21 and to describe the nature of the case and summarize the issues, at least in complicated matters.22 Some jurisdictions also permit the attorneys to draw reasonable inferences from the anticipated evidence, and thereby tell the jury in more conclusory fashion the gist of the evidence.23

The prohibition against argument must be understood in light of the reasons for giving opening statements. As long as opening remarks will assist the jury in understanding the evidence, they are permissible. However, when they turn distinctly partisan--asking the jury to resolve disputes, make inferences, or

16 See Cherny v. Fuentes, 649 N.E.2d 519 (App. Ct. Ill. 1995). Cf. Galanek v. Wismar, 81 Cal. Rptr.2d 236 (Ct. App. Cal. 1999) ("clearly"disfavored practice).

17 See State v. Smith, 988 S.W.2d 71, 75 (Mo. Ct. App. 1999). 18 See, e.g., State v. Thompson, 68 S.W.3d 393 (Mo. 2002). 19 LEONARD DECOF, ART OF ADVOCACY -- OPENING STATEMENT ? 1.06[1] (2001). 20 See JAMES JEANS, TRIAL ADVOCACY 316?17 (2d ed. 1993). 21 See People v. Frazier, 738 N.Y.S.2d 16 (App. Div. 2002). 22 See Lamar v. State, 68 S.W.2d 294 (Ark. 2002). 23 See, e.g., Commonwealth v. Williams, 761 N.E.2d 1005, 1009 (Mass. App. 2002) (victim retracted part of her accusation to protect boyfriend/defendant).

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interpret facts favorably to the speaker--the remarks are argumentative.24 Common examples of argumentation include:

Asking the jury to resolve disputes in your favor. For example, you cannot refer to your witnesses as "good and truthful," and therefore more worthy of belief than your opponent's witnesses,25 nor discuss how your evidence satisfied a legal standard.

Making negative judgments about your adversary or referring to the other party in scurrilous terms. You cannot, for example, call the defendant a "big cow." 26

Using colorful labels that characterizes facts in a way distinctly favorably to your side. For example, the prosecutor cannot characterize a crime as a "rampage of terror" 27 or "unspeakable evil."28

[2] Discussing the Law

Local rules vary widely on the extent to which you may talk about law in your opening remarks. Most jurisdictions do not permit the law to be discussed in any detail in opening statement.29 However, most will permit you to state briefly the main legal issues on which the case depends. For example:

In an opening statement to the jury the plaintiff's counsel briefly outlined his claim with regard to the law of negligence. The gist of the statement in this regard was that negligence is a shortage of duty; but some expressions were used which deviated from an accurate definition of negligence. Counsel expressly disclaimed that such statement was made in correct legal form, and at the outset reminded the jury that they were to take the law from the court. There was nothing of an inflammatory character in the statement, and what was said about the law was put forward in a way that suggested to the jury that the claim of the defendants would differ from that of the plaintiff. An exception was taken to the opening statement, but it avails nothing. In so holding there is no intention on the part of the court of giving countenance to the idea that counsel may argue the law to the jury, or read law to the jury, or treat as open questions of law upon which the court has ruled, or in any way seek to have the jury understand that they can do otherwise than to take the law from the court.30

When a cause of action is based on a statute, you usually will be permitted to read the statute or an approved jury instruction, but you will not be allowed to go further and argue how the law is supposed to be interpreted. 31

24 See People v. Green, 702 N.Y.S.2d 317, 318 (App. Div. 2000) (defense attacked reliability of identification and accused police of planting evidence to bolster case).

25 Murray v. Taylor, 782 A.2d 702, 714 (Conn. App. 2001). 26 Turner v. Commonwealth, 240 S.W.2d 80 (Ky. 1951). 27 State v. Valdivia, 24 P.3d 661, 677 (Haw. 2001). 28 State v. Runningeagle, 859 P.2d 169, 173?74 (Az. 1993). 29 United States v. Ziele, 734 F.2d 1447, 1455 (11th Cir. 1984); Lam v. Lam, 212 Va. 758, 188 S.E.2d 89 (1972). 30 Lewes v. John Crane & Sons, 62 A. 60, 61 (Vt. 1905). Contra Williams v. Goodman, 29 Cal. Rptr. 877 (Cal. App. 1963); State v. Kendall, 203 N.W. 806 (Iowa 1925). 31 E. g., Northern Trust Co. v. St. Francis Hosp., 522 N.E.2d 699 (Ill. App. 1988).

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