By Hon. Robert Trentacosta

The following is a checklist to help you prepare and execute a compelling Opening Statement. In your first few trials, be sure to review the list until the items become familiar and habitual.

Personal preparation

• Review the applicable jury instructions for each count or cause of action and any defenses applicable to your case. From the outset, you must know the elements you need to prove or refute.
• Review your entire file including: all transcripts, reports, statements, investigatory materials, pleadings and discovery.
• Create your case theme. This is a concise phrase or sentence that summarizes your trial position on the key issue at trial. For example, as Plaintiff’s counsel in a nursing malpractice case your theme as to liability might be “This is a case about a patient who was ignored to death.” As to a self-defense in a criminal assault case: “This case is about the most basic human instinct – survival.” Your case theme should reflect the values, attitudes and beliefs of the jurors you will select in voir dire. When your case theme resonates with the jurors’ sense of fairness and justice, they will be much more likely to find in your favor.
• Create your case theory: A case theory is a set of facts supporting your case theme at trial. For example, in the nursing malpractice case above, the case theory follows this factual scenario: the patient’s assigned nurse failed to follow the doctor’s written orders to take vital signs every half-hour. The patient was not seen by nursing staff for nearly two hours and coded. She died because she was not given her prescribed medication and fluids. The nurse’s indifference to the patient and failure to follow doctor’s orders makes her directly responsible for the patient’s death. That is the story you will tell the jurors in opening statement. Your case theory will be the template for your opening statement, and the facts you will elicit on direct and cross- examination of the witnesses.
• Plot your trial story line: Create a narrative in the form of a story in which the witnesses are introduced, the case theme and theory are weaved-in, and your “ask” (what you want the jurors to do at the end of the case) is clear.
• You must always maintain credibility with the jurors and the court. In crafting your narrative, do not over promise in your opening statement. Competent opposing counsel will make you and your client pay for factual inaccuracies and promises not kept.
• Outline your opening statement.
• Practice out loud to make sure that you believe and can prove every word of your opening statement. It is essential to deliver your opening statement with confidence and conviction.
• Once you have the narrative down, decide if, and how, you want to illustrate your opening statement with photographs, videos, diagrams, models, drawings or other writings.
• In larger cases, you may wish to have a focus group listen to your opening statement and give you feedback as to their individual reactions.
• Your personal preparation must include an honest assessment of the persuasive power of your story and your attitude and demeanor while delivering your opening statement. Are there areas of the opening that are factually incorrect, flat, confusing, contradictory or overly dramatic? The practice sessions are geared towards making you more confident in delivery and conscientious about the factual representations you are making to the jurors. Videotaping your practice sessions, may assist in conducting an in-depth analysis of areas for improvement. 

Conducting the Opening Statement

• Do not read your Opening Statement. This is a storytelling performance and should be engaging to the listeners.
• Do not write out your Opening Statement on pages that you will need to turn as you proceed through. (The jurors will look at the stack of papers and wonder how long it will be before you turn over the last page).
• Memorize your lines (your opening statement). If you went to a play and the actors were reading from a script book, it would detract from the performance and look like a rehearsal. The same is true for opening.
• If you have not memorized your opening, you may outline your remarks on your laptop, or on a manila folder to be laid flat on the podium where you can see it, but the jurors are not distracted by the turning of pages and loss of eye contact with you.
• Decide when, and if, you want to use the courtroom podium. Like any stage production, the podium is a prop. How you use it or elect not to use it, is a strategic decision. If you have your opening memorized, there may be no need to place notes on the podium for reference. You may simply stand before the jurors and engage them (this is optimal).
• If you elect to use a podium, do not put the podium too close to the jurors so as to invade their personal space. Generally, make sure you allow at least two feet of space in front of the jury box.
• How you begin your opening is important. There is a power to silence. When it is your turn to deliver your opening, make eye contact with the jurors, wait a few seconds in silence, and get their undivided attention. Then begin.
• Remember, when you start your opening statement, there is a “magic minute” when you will have the jurors’ rapt attention. Jurors are conscientious and curious about the case they will hear. They will give you the courtesy of listening to the beginning of your opening. Make that “magic minute” count. How long you will hold their attention depends on the quality of your storytelling and advocacy.
• Make eye contact with the jurors and never turn your back to them as you are speaking. If you shuffle through pages of notes, you will lose the connection with the jurors and try their patience.
• Move with a purpose! Do not pace in front of the jury box while delivering your opening. This is a common nervous habit that distracts from your message. Movement, whether with hand gestures or pacing, should add emphasis to your points, not reflect hyperactivity or nervousness.
• If you illustrate your opening with photographs, video, diagrams or other illustrative aids, make sure the item being shown is large enough that it can be seen clearly by the jurors; and positioned, so all the jurors have an unobstructed view. Be sure to obtain court approval before you use an illustrative aid in Opening Statement.
• An opening statement is not closing argument. Save your argument for closing. An argumentative opening statement will draw an objection, and if sustained, will disturb the flow of your story. It may also give the jurors the impression that you are not playing fairly and detract from your credibility.
• At the conclusion of your opening statement, make a clear “Ask” to the jurors, i.e., tell the jurors what you want them to do at the end of the case. For example, “…For all those reasons, at the end of this case, I will ask you to find that Mr. Jones [defendant] is not guilty of this crime.”

Conclusion

Creating and delivering a persuasive Opening Statement requires personal preparation as a prelude to a successful performance in court. You must construct a case theme and theory and weave them into a compelling story that will captivate the jurors’ attention. The opening statement should be memorized and delivered with confidence. If you intend to use illustrative aids, prepare them in advance, and make them large enough to be clearly seen by the jurors. At the conclusion of your opening statement, make a clear “ask” so the jurors know precisely what they are expected to do.