Chapter 9 - § 9.2 LIMITATIONS

• Jurisdiction: Colorado

§ 9.2 LIMITATIONS

Colorado

➢ When May Statement Be Given. After the plaintiff makes an opening statement, the defendant may request that his or her opening be reserved until the conclusion of the plaintiff's case. The trial court has discretion to determine whether the defendant may reserve opening statement. Sullivan v. Beers, 529 P.2d 320, 324 (Colo. App. 1974) (not selected for official publication).

Practice Pointer
While the defendant may be tempted to reserve his or her opening statement on the theory that at the time the defendant's statement is made he or she will know the full extent of the plaintiff's evidence, most lecturers on trial tactics recommend against this procedure on the basis that this is the defendant's only opportunity at the outset of the case to tell the jury the defense position prior to the jury hearing the plaintiff's evidence.

These same lecturers also recommend that telling the jury that opening statements "are not evidence" weakens the impact of the defendant's opening. They recommend that opening statement be used to tell the defendant's story or paint his or her picture without the use of "boilerplate" phrases.

➢ When Opening Statement Refused. Since the purpose of the opening statement is to inform, if a defendant reserves the right to make an opening statement at the end of the People's case and then announces to the court that he or she will present no evidence, the court may properly deny the request to make the opening statement. Thompson v. People, 336 P.2d 93, 97 (Colo. 1959).
➢ When Opening Statement Supplemented. The court has discretion to allow a party to make additional opening comments if a ruling by the court results in surprise. Young v. People, 488 P.2d 567, 572-73 (Colo. 1971).

➢ Time Allowed — "Clock Trials" — Limitations on Time. It is common for trial courts to limit the time for openings in civil trials, and then to further limit time for other parts of the trial. In Maloney v. Brassfield, 251 P.3d 1097 (Colo. App. 2010), the court of appeals addressed time limitations on trials imposed by trial courts. The court held that trial courts have discretion to impose "clock trials," meaning trial time limits. The court cited to CRE 611(a), which gives trial courts the discretion to "exercise reasonable control over . . . present[ation] of evidence so as to . . . avoid needless consumption of time." However, the court held that imposition of arbitrary, inflexible, or capricious time limits or limits contrary to law is an abuse of discretion likely giving rise to reversible error. If a time limit denies a party a full and fair trial, it is an abuse of discretion. Maloney does not specifically address opening statements (or

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