Chapter 5 - 5.2 Practical Applications

• Jurisdiction: Virginia

5.2 PRACTICAL APPLICATIONS

5.201 Objections During Opening Statement. Even though an objection during opening statement is considered proper, there are potential disadvantages to this tactic that should be evaluated before using it. Most importantly, courts are not as receptive to objections during opening statement because some flexibility is allowed to each side at this stage of the case to present an overview of its perspective on the case. Counsel must weigh the potential damage from the objectionable material against the risk that the objection will be overruled, perhaps with an admonishment to objecting counsel that will give the negative evidence even more importance in the jurors' minds. But when serious harm is threatened, an objection should be made.

5.202 Examples of Objections. Objections that may be made during the course of the opening statement are the following:

Objection: Counsel is arguing the case.

Reply: This is not argument, but rather a statement of what the evidence will show.

Discussion: Because the purpose of opening statement is to state the facts, it is improper for counsel to attempt to argue the case.³

Objection: Counsel is arguing the law.

Reply: This is what the evidence will show.

Objection: Counsel is arguing the credibility of expected...