10-A Civil

• Jurisdiction: Arizona

A. Civil

The opening statement is the most important part of the trial. This is the first chance the lawyers get to use their powers of persuasion.

The opening statement “shall be confined to a concise and brief statement of the facts which the parties propose to establish by evidence on the trial.” Ariz. R. Civ. P. 39(b). The federal rule is identical to the state rule. LRCiv 39.1.

The Arizona Supreme Court has stated:

The purpose of an opening statement is to advise the jury of the facts relied upon and the questions and issues involved, which the jury will have to determine and to give them a general picture of the facts and the situations, so that they will be able to understand the evidence . . . .

State v. Burruell, 98 Ariz. 37, 401, 401 P.2d 733, 735-736 (1965) (quoting State v. Erwin, 101 Utah 365, 422-424, 120 P.2d 285, 311-313 (1941)

Technically, lawyers are not supposed to “argue” during opening statements. Turley v. State, 48 Ariz. 61, 59 P.2d 312 (1936). Counsel are also not supposed to state their personal beliefs. E.R. 3.4(e), Arizona Rules of Professional Conduct. In reality, however, lawyers must persuade the jury during opening statements.

Most trial lawyers prefer not to object during openings. Occasionally, however, a lawyer is compelled to object that the opening is “argumentative.” Judges also sometimes sua sponte warn a lawyer that he or she is arguing. If an objection is raised that the opening is argumentative, counsel should simply rephrase the statement by starting with “the evidence will show….” For example, counsel probably cannot proclaim in opening statement, that the “plaintiff is simply not credible.” If an objection is made to such a statement, however, counsel can change the statement from “the plaintiff is not credible” to “the evidence will show that the plaintiff is not credible.”

Various studies have shown that many jurors make up their minds about a case during opening statements. Primacy is a key consideration at every step of the trial, but particularly in opening statement. The plaintiff has the advantage by going first. Plaintiff’s counsel has a unique opportunity to quickly swing the jury to plaintiff’s side.

As such, it is critical that the case theme be developed early in the opening. At the outset, the jurors want to learn about the case. They are usually attentive. Counsel should take advantage of the opportunity to “swing” jurors early in opening by presenting a compelling case theme.

Once the...