On Opening Statements
trial.In a past life I was an avid game player. Games of all stripes, I couldn’t get enough of mano a mano competition. These days I don’t have the time or resources to compete like I used to, but those instincts haven’t gone away. Instead these days, I channel them into trial.
To a criminal defense lawyer, trial is the ultimate high-stakes competition. Your client’s liberty is at stake, you’re arguing against an intelligent, resourceful, prepared opponent; and your fight happens in front of an audience. It’s very intense for the attorneys (to say nothing of the clients).
Because trial is so intense and nuanced and personal, there is a lot of conflicting information about the “optimal” way to prepare and execute a trial. I don’t believe there is one best way, but rather what works for each individual. Two attorneys could have two very different, but successful styles; neither would be wrong.
Win or lose, at the end of every trial I talk to the jury and see what I could do better. Sometimes I talk to the judge or my opponent too.
All of this means that I like thinking about each stage of the trial process. And as long as I’m thinking about it, why not talk about it here? Today’s post is about trial’s opening statement.
Purpose of Opening Statement
A lot of parts of trial have a very practical purpose. Cross-examination allows an adversary to explore a witness’s testimony. A judge instructs a jury on what the law is so they know how apply the law to the facts of the case. Objections prevent a jury from seeing inadmissible evidence. And so on.
Opening statement doesn’t have a pragmatic purpose like that. A trial could reasonably exist without the lawyers giving opening statements. It is a holdover from ancient Greek oratory, where the speakers would give their statement to frame the evidence that was about to be provided. That framing is an important point to remember.
You know how on TV or movies the parts of the trial they show are the most dramatic points? A surprise reveal? The breakdown on the stand? First off, you rarely see opening statements in those kinds of programs, which may be a signal how boring they can be (although as I argue below, those openings may not be ideal anyway).
One purpose of an opening statement is to tell the jury what is and what isn’t important. It’s simply impossible for a human being to give their complete attention to every word of every witness throughout a day. Attention wavers, people get tired, etc. An opening statement “primes the pump” so that the jury has a preview of what is important and what is contested, so they can devote their full attention to those moments. I discuss this in some detail here.
Opening statements also allow you to refute your opponent’s version of events. Obviously there’s disagreement somewhere, otherwise there wouldn’t be a trial at all. Opening statements allow each side their version of events, so the jury can see where the disagreement lies.
Restrictions on Opening Statement
During opening statements, lawyers give a preview of the evidence they expect to be elicited in trial. It is not a time for argument and supposition (that’s closing argument, another post altogether). But, you may wonder, what makes a statement fact instead of argument? For example, what about a sentence like:
“The defendant recklessly drove into oncoming traffic.”
Clearly that sentence talks about facts and evidence, but there’s some argument intertwined there, too. In the real world, there’s no bright line rule on when something becomes argument in an opening statement. Like a lot of things at trial, discretion is given to the lawyers and the trial judge. Outrageous stuff gets an objection, but as a matter of professional courtesy, it’s pretty rare for objections during opening statements. This example was properly objected to but I must note some attorneys consider it the finest opening statement in the history of the practice.
But just because you’re restricted from argument doesn’t mean you need to boringly start each sentence with “And the evidence will show that X, and the evidence will show that Y…” Blech. The jury may politely pay attention, but they’re going to dread it every time you get up to talk.
Order and Passivity
One thing people may not realize about the defense and opening statements is that the defense always goes second. When the prosecution has the burden of proof, as they always do in criminal cases, the prosecution gives the first statement to the jury. People who have studied psychology or debate know that being the first to speak is a powerful advantage.
I was talking about this on Twitter once and a fellow asked me why I would want to go first anyway. “Isn’t your whole opening statement that the prosecutor is wrong?”
If you boil it down to its essence, it’s true that the defense’s opening is “the prosecution can’t meet its burden of proof.” But literally saying that, and only that, is a problem. It’s a problem because it’s so unbelievably passive.
What statement is more powerful?
“The defendant is innocent.”
“The prosecution can’t prove its case beyond a reasonable doubt.”
Both mean effectively the same thing but the first statement is much more powerful. It has that power because it’s affirmative. The second sentence sounds shifty, like the truth will never be revealed. The second statement is also passive. It says the prosecutor is running the show, and they’re the ones you need to pay attention to. The first statement says “Pay attention to us, you’re going to find out what’s really going on.” And that means that an effective opening statement tells a story.
The correct method to do an opening statement is a story because it gives the storyteller all the power. The storyteller gets to tell the audience what happened and when, but most importantly, it gets to tell the audience who the heroes and villains are. The defense can’t help the defendant was charged with a crime. But telling a story allows the defense to … why this defendant was charged, why it was an error, and how the jury can right this terrible wrong (“vote ‘Not Guilty.’”)
An opening statement requires the lawyer to paint a picture, using words and actual pictures, to make the situation come alive for the jury. If you do it well, and storytelling is both art and science, it’s as if the jury is there along with you. That’s engaging and powerful. And again if your story has your client being the injured party, a jury will naturally feel inclined to suffer along with your client, and then naturally want to make it right.
This does beg the question: should you acknowledge the prosecution’s version of events at all? Unfortunately there’s no automatic answer here. Telling a story based on their foundation is passive, but ignoring what they say completely can make it seem like an attorney is scared of confronting the opposing side, or that their opening statement is secretly true, or that the defense attorney is too rehearsed to adapt. Since none of those impressions make me look good, I do try to acknowledge the truly harmful points of the prosecution’s opening. In this way going second is an advantage (although I’d still rather go first if I had my way).
Opening statements require practice and prep, like any other parts of trial. Some attorneys think opening is the least important part of a trial, and they may be right. But it’s an opportunity to talk directly to a jury, and those opportunities are rare enough to be treasured. I spend a lot of time crafting a good opening because it allows the defense to hit the ground running, to come across enthusiastic and righteous. That alone is worth the effort. As Mark Twain once wrote “It takes…weeks of preparation to give a good impromptu speech.”