Oct. 10, 2017
The ultimate strategy consideration in an opening statement is “what to leave in—what to leave out.” According to Edward E. Taber of Tucker Ellis LLP in Cleveland and Daniel J. Donnellon of Bingham Greenebaum Doll LLP in Cincinnati, there are many variables to consider. Keep in mind that many legal theorists firmly believe that jurors become entrenched to follow a particular side after only hearing opening statements.
For a civil defense attorney, opening statement is the only conventional opportunity to preempt the barrage of evidence from plaintiff’s case-in-chief that will immediately follow. It is an opportunity that should not be wasted.
Strategy considerations for your opening statement may include:
1. Don’t make promises you can’t keep.
If you’re not sure that certain evidence will be admitted, or whether a key witness will testify, don’t tell the jurors in opening that this will occur. Counsel who don’t deliver on promises made during opening statement will generally by punished by the jury for that—often with opposing counsel reminding the jurors of the unkept promises, at the time of closing argument. Your credibility with the jury (and the court) is like a bank account, which you must build at every opportunity and protect jealously. Opposing counsel may have the transcript of your opening statement written up for use in closing argument (as a demonstrative exhibit), to point out any promises that you failed to keep.
2. Begin explaining your themes from the very beginning.
Themes may be the most important part of an opening statement. Themes are often one to four very basic ideas that are keys to your case, and run throughout the evidence. They should be painfully simple, well-supported, relevant, and easy to remember. Successful themes often relate to societal norms shared by large groups of people, such as “personal responsibility,” “human judgment,” “profits over safety,” “rushed to market for profit,” “never tested in humans,” “marketing concerns drowning out safety,” “following the rules,” “good outcome,” “callously refused an inexpensive, 30-second test that could have saved a life,” “surgery is not perfect,” “well-known risk of the procedure that happens in the best of hands,” etc. Themes are important enough to mention them twice during opening statement. A visual aid (PowerPoint, foam core blow-ups, or even an “old school” easel pad) can be very helpful to reinforcing themes.
3. Pre-emptive strike.
Consider the use of a pre-emptive strike to “take the sting” out of a particular fact that will eventually come into evidence which is unfavorable to your client. This may be a “document which requires explanation.” Good opening statements do not typically revolve around simply rebutting the opponent, however. Tell your story—rather than just explaining the fallacy of your opponent’s story. For example, in a defective product case, an important defense strategy might be to keep the focus of the story (and hence the trial) on specifically relevant individual medical causation issues, rather than abstract “bad corporate conduct” issues weakly linked (if at all) to the plaintiff at issue. If the defense merely tries to rebut the “bad corporate conduct,” they allow the focus to be drawn away from the more relevant (to that plaintiff) issue of individual medical causation.
4. Visual aids.
Use visual aids, but make sure they are flexible. The opening statement is the easiest part of the trial to prepare in advance, because it comes before the uncertainty of evidence. This means that the opening is perhaps the most amenable step of the trial to the use of demonstrative exhibits such as timelines, PowerPoint, Trial Director or other electronic presentations. In this day, jurors expect an impressive display, and the day when clients worried that use of visual aids could be “too slick” appears to be gone. Be careful to avoid divorcing your electronic presentation too much from the actual evidence. A preview of the evidence should be just that—not a collection of altered, deceptively rewritten sound bites artificially contrived for litigation purposes and only loosely related to the actual facts and evidence (like political advertisements unfortunately have become). High-profile civil trials have largely become a “battle of the PowerPoints” in opening statement and closing argument, with counsel often required to exchange their PowerPoint Presentations with opposing counsel prior to use. Avoid excessive text in PowerPoints.
Practice the opening on somebody who does not know the case, but is willing to be candid. If your observer is constructively critical, then you may learn through this exercise that opening statements that exceed 30-45 minutes do so at your own client’s peril. This is also a good way to try out themes, particularly if the audience is a nonlawyer.
Organize your opening statement plainly. You have probably lived with the case for months. Resist the temptation to dump everything you know on the jury during opening statement in a disorganized fashion. PowerPoint can be helpful to convey clarity in organization.