March 19, 2024

Podcast - Opening Statements: Some Common Challenges

The Trial Lawyer's Handbook: A Courtroom Preparation Podcast Series

In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses the complexities attorneys face in crafting an effective opening statement during a trial. He tackles common challenges such as introducing key legal concepts without crossing any lines, skillfully anticipating opponents' arguments, addressing your case's weaknesses from the outset and thanking the jury. Mr. Small meticulously explains how to use minimal legal language, deal with opponents' points before they're made and make a good first impression without coming off as insincere.

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Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.

Dan Small: With this episode, we're going to wrap up our discussion of one of the most important parts of the trial, the opening statement, by addressing some of the more difficult challenges in an opening statement environment.

The first challenge is introducing key legal concepts. It's strange that we're in a legal environment, but in the first step of that process, the opening, we're not supposed to talk about legal concepts. The traditional rule is that any discussion of law or legal concepts is out of bounds. Many judges are terribly prickly about this subject and will growl at you, or worse, if they perceive that you're treading onto their turf. The problem, of course, is that most cases turn directly on one or more legal principles. Did the defendant intend to evade his taxes? Did he possess a firearm? Was he negligent? And some legal principles are confusing at best. Ask 10 people on the street what "standard of care" really means. You'll get 10 different answers, and probably none of them correct under the law.

If the case turns on a legal principle, you need to say so. But be very careful. Do it in broad terms with minimal legal language. Never use explicit definitions or technical language. Don't say "to act intentionally means to," etc. or "negligence is defined as," etc., and don't delve too deeply into any legal issue. If the legal concept is simple and uncontroversial, you can usually just say it. For example: "Mr. Jones does not deny that he didn't report that income on his tax return, but he didn't act knowingly and willfully. In other words, he didn't do it on purpose. He was sloppy. He was neglectful, but he did not intentionally evade his tax obligations."

The second challenge is anticipating your opponent's arguments. If you're a civil plaintiff and therefore going first, you want to anticipate your opponent's points. But it's obviously tricky to anticipate something that hasn't been said yet. If you're too specific, you may get it wrong, and some judges may not let you go very far down this path. This is often a good spot for rhetorical questions: "I expect that you will hear testimony from the company that Mr. Jones wasn't performing his job properly. But ask yourself, as you listen to the evidence, is that the real reason why he was fired or was something else going on?"

If you're a prosecutor, be extremely careful about anticipating any kind of defense argument. With rare exceptions, it's almost impossible to do that directly without impermissibly suggesting that the defendant has to put on evidence. They don't. So don't say, for example, "I expect that the defendant will try to show that," etc., etc.

Number three, addressing weaknesses in your case. Should you try to address the weaknesses in your case? You bet. Almost always try to take the sting out of any bad facts to the extent you can. You don't want to ignore them and then allow the other side to not only introduce them, but to frame the issues. And a bad fact looks even worse if the other side can say that you tried to ignore it or, even worse, cover it up. Usually the best way to handle this is something along the following lines:

It's true that we don't have a witness who saw everything. The case has been pieced together from multiple witnesses and multiple sources of evidence. Sometimes that's the way it has to be done. Some of those pieces don't fit together perfectly, and there may be some minor gaps. But that evidence, circumstantial though it may be, compels only one conclusion.

Challenge number four: Thanking the jury. Should you thank the jury in your opening? Conventional wisdom says probably yes. Most lawyers do it, and the chances are good that your opponent will. Why not do it? Well, because it may sound a little bit phony, and you don't want to strike a false note or seem like a flatterer right from the outset. If you decide to thank them, don't overdo it. Just say it, mean it, and move on.

Opening statements, as we've said, are your only chance to make a first impression. Consider the opportunities and the challenges that it presents very carefully.

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