Today, we’re going to look at twelve simple rules that a plaintiff’s attorney should follow during the course of an opening statement. By keeping these things in mind, you’ll keep yourself from making simple mistakes that could compromise either your case, or your standing with the jury.
- According to studies, jurors believe that lawyers waste too much time; that they fail to get to the point and constantly repeat themselves. Take heed. Be concise; don’t repeat what has already been said and make your point clear. Be as short as reasonably possible. It is about quality, not quantity.
By repeating yourself, or reiterating too many times, it can seem as though you are “talking down” to the jury. Don’t give the insinuation that the jury doesn’t “get it”.
- Jurors complain that lawyers confuse the issues, and that they do not speak using plain language. Be mindful of the words you use. Use action verbs that provide a clear mental image to the jurors. Actively try to avoid seeming like you’re trying to “get one over” on the jury.
- Jurors complain that lawyers are simply not believable. Our credibility has been seriously undermined by the public perception of events such as the McDonald’s case, the California OJ trial, and insurance propaganda about high insurance rates. Be sincere. First you must find the truth and justice in your case before you can communicate it to the jury. Appearing authentic and “human” is something to be mindful of.
- Obviously, do not make inaccurate, exaggerated or untrue statements. Do not overstate your case. Promises made in opening must be kept, and failing to do so can make a huge mess of your case later on.
- Avoid personal attacks on opposing counsel. Cf. People v. Carney, 222 A.D.2d 1006, 636 N.Y.S.2d 524 (4th Dep’t 1995) (prosecutor’s repeated remarks during opening that defense counsel’s role was to confuse the jury was cured by prompt admonition from judge).Personal attacks are bad form, and have just as much of a chance of backfiring as they do of working to your advantage.
- Do not refer to the defendant’s ability or inability to pay damages.
- Do not refer to insurance coverage or offers to settle or compromise. See Estes v. Town of Big Flats, 41 A.D.2d 681, 340 N.Y.S.2d 950 (3d Dept); Sabin-Goldberg v. Horn, 197 A.D.2d 462, 578 N.Y.S.2d 187 (1st Dep’t 1992).
- Do not denigrate your own knowledge of the case or your ability to prove it.
- Do not ask the jurors to place themselves in the shoes of the client.
- Do not overtly instruct the jury as to what the applicable law is.
- Do not use “unit of time” arguments, i.e. break down your monetary demand into units of specific dollar amounts for each type of alleged damage. See Miller v. Owen, 184 Misc.2d 570, 709 N.Y.S.2d 378 (Sup. Ct. NY County 2000).
- If your opening statement is not transcribed, any objections and/or contentions regarding improper conduct are not preserved for appellate review. See Corsaro v. Mt. Calvary Cemetary, 258 A.D.2d 969, 685 N.Y.S.2d 512 (4th Dep’t 1999).
By sticking to these twelve rules, you can avoid most of the major pitfalls in an opening statement. Generally, the major themes are simple: Don’t give the jury any reason to dislike you personally, or believe that you are trying to deceive them, and don’t oversell or obfuscate your own case and set yourself up for disaster down the road. Please see the relevant cases cited for more information.