TEN DO’S OF OPENING STATEMENTS
1. DO Tell the Story. Narrate what happened, and avoid starting each sentence with, “The evidence will be that…”
2. DO Speak Loudly and Clearly. Jurors who are forced to strain in order to hear and understand what you say will be lost to you.
3. DO Only Outline Facts You Will Actually Prove. Remember that your opponent may have your remarks transcribed for the purpose of an embarrassing comparison with the facts in closing argument.
4. DO Try to Speak Without Notes. You must start at this point in convincing the jury that you are the single person in the courtroom who has the complete command of all facts involved in the case.
5. DO Use Demonstrative Evidence. Try to avoid a dry narrative by the use of charts, transparencies, exhibits, photographs, and the like.
6. DO Sound Your Theme. Whatever theme you intend to develop in the course of the case and closing argument, be certain that it is announced and made evident in your opening statement.
7. DO Think Carefully About Announcing Your Prayer for Damages. If it is a small prayer because of low policy limits, go ahead and tell the jury about it in the beginning. If it is a large prayer, save it for the end. Remember that people selling expensive items such as houses and cars get the customer sold on the product before telling them the price.
8. DO Be Humble, Honest and Straightforward. Jurors now enter the jury box with a clinched-teeth determination not to be tricked by conceited lawyers. Do everything you can to avoid any appearance of being a trickster.
9. DO Believe in Your Case and Your Client. If jurors sense for a second that you do not have faith in your own case, they will never have faith in it either.
10. DO Practice Your Statement Out Loud. Many ideas which sound good inside the head do not sound good when they come out the lips. Practice before persons who will give you constructive criticism so that you can deliver your remarks confidently.
TEN DON’TS OF OPENING STATEMENTS
1. DON’T Use Big Words. Jurors desperately want to understand the case, and will be aided in that by your using plain, understandable terms.
2. DON’T Ignore Weaknesses of Your Own Case. Jurors will come to distrust you if they later learn that you specifically omitted some bad feature about your case in the opening statement.
3. DON’T Attack Opposing Counsel. Throughout the trial, jurors and judges generally have a dim view of attorneys demeaning one another.
4. DON’T Argue the Case. Most attempts at argument during opening statement will be the subject of sustained objections. Furthermore, the jurors will sense that you are trying to gain an improper advantage.
5. DON’T Display Affectations. Phony smiles, faked indignation, and any form of insincere dramatic effect will generally not be well received by the jury.
6. DON’T Ignore Your Client. Jurors need to see that the lawyer is there representing the client’s interest rather than just trying to produce income for the law firm. Pay attention to the client at all times, and direct the jurors’ attention to the client.
7. DON’T Ignore Jury Instructions. An attorney may lose a case by giving an opening statement and presenting evidence which is too remote from the eventual phrasing to be chosen by the judge for the jury instructions. Try to anticipate the jury instructions and use as much of the terminology as can be used during opening statement.
8. DON’T Rush. This is one point in a trial where there is no time limit, and judges generally will not interfere. Take advantage of this opportunity.
9. DON’T Be Nervous About Being Nervous. Everyone should avoid overlaying natural nervousness with a second layer of nervousness based on the inability to calm down. Just let the natural nervousness flow. It merely demonstrates that you care about what you are doing.
10. DON’T Worry, Be Happy. As Bobby McFerrin has so well instructed us, we should not be paralyzed by worry, but rather should be energized by happiness. Convey to the jury that you are both confident and pleased to be there representing your client.