Helpful "Trial Tips®" to Hone Your Litigation Skills

Copyright © 2007

By: Ervin A. Gonzalez, Esq.
Board Certified Civil Trial Lawyer,
Florida Bar and National Board of Trial Advocacy

A good opening statement paves the way to success at trial. It represents the attorney's first opportunity to persuade the jury in the client's favor. A trial attorney should develop the entire case during the opening and show that the evidence will prove that his or her client should win the case. Many have described the opening as the most important part of the case. This article discusses some of the basic elements that make up a good opening statement.

First and foremost, prepare your opening so that it tells a complete and interesting story. Do your best to avoid a bland, boring discussion of what the evidence will show. The opening should be "alive," well organized and persuasive. The theme of the case should be clearly and concisely presented. Highlight who the important witnesses are and what they will say. Further, you should identify the important documents and demonstrate what they will prove.

Demonstrative evidence should be used during the opening. This will greatly increase the jury's understanding of what the evidence will actually show. Moreover, it directs the jury's attention to important evidence and allows them to recognize it once it is introduced during trial. For example, in a breach of contract case, you should blow up the relevant portion of the contract around which the dispute developed. Show that portion of the contract to the jury and read it to the jury during the opening statement. The opposition has no valid basis to object to your doing this provided that the portion of the contract that you are showing to the jury will be accepted in evidence.

In a personal injury case, you should use diagrams, charts, and/or photo enlargements showing how the incident occurred and what injuries were sustained by your client. Use the charts to explain the complex engineering and medical terms that will be heard throughout the case.

The opening is limited to what the evidence will show. It cannot be argumentative; however, this does not mean that you are prohibited from being interesting, persuasive or from having a little fun during your presentation. Quite the contrary, a successful opening statement should be entertaining and should leave the jury with a feeling that you are right and that your client should win. Deliver the opening with enthusiasm and conviction. Use rhetorical questions to make the jury think about your case. Bring the key issues in the case to the forefront by placing the jury in the controversy through the use of descriptive words and well developed and organized thoughts. Paint a verbal picture of your case.

Fully develop the players in the case. Tell the jury who your clients are and what they are all about. Develop their personalities so that the jury will get to know them and understand them.

In organizing the opening statement, remember that jurors tend to remember best what they hear first and last. Thus, present the strongest evidence in that order. Near the end of your presentation, make statements that will leave the jury with an understanding of what your clients have gone through and what the jury may do to remedy the situation.

The opening statement should also be used to introduce the weak portions of your case and to defend against your opponent's case. This will take the wind out of the opposition's sail and will enhance your credibility because you are being open and honest with the jury. Use the opening to expose your opponent's weaknesses. If you know that your opposition will call a witness whose credibility is questionable, you should mention the credibility problems during the opening. Once the tainted witness takes the stand, the jury will be ready to question the validity of that witness's testimony even before your cross-examination begins. The "defensive" aspect of your opening statement should be sandwiched in the middle of your opening and should not take up more than 10% of your presentation.

If possible, move away from the podium and try to talk to the jury as if you were speaking to a group of friends. This will allow you to speak more freely, openly and relaxed. Do not read your opening. Use as few notes as possible. The opening statement should not be confused with scientific or academic forum. Speak to the jury about your case using easy to understand language.

The opening statement is one of the most crucial aspects of the trial. Accordingly, the opening statement should be fully developed and adequately prepared. Do not rush through the opening. Instead, speak in a manner that is relaxed, easy to understand, entertaining and persuasive. A great opening statement may not win the case by itself; however, it will certainly set the stage for a successful verdict.