Chapter 9 - § 9.1 • GENERAL

• Jurisdiction: Colorado

§ 9.1 • GENERAL

"Um — everything that guy just said is bull* * * *. Thank you."
Opening Statement by Joe Pesci, My Cousin Vinny

Do Opening Statements Win Trials? Sorting Myth From Fact

Practice Pointer
As a trial lawyer, you have three opportunities to speak directly to jurors: voir dire, opening statement and closing argument. Don't waste the opportunity to present a great opening statement. The best trial lawyers are self-aware people. If you are not aware of how you are coming across and the way your presentation is affecting the audience, you compromise your ability to deliver the best opening — and trial presentation — for your client.

Some lawyers are fond of pronouncing that trials are won during opening statements: "Empirical studies conclude that after hearing opening statements, 65 to 80 percent of jurors not only have made up their minds about the case, but in addition, in the course of the trial, they do not change their minds." Charles Becton and Terri Stein, "Opening Statement," 20 Trial Law Q. 10 (1990).

Others disagree:

This oft-repeated assertion is false. William L. Burke, Ronald L. Poulson and Michael J. Brondino, "Fact or Fiction: the Effect of Opening Statement," 18 Contemp. L. 195 (1992). * * * This piece of misinformation is usually attributed to the research of the University of Chicago Jury Project, but no actual source is ever cited, and all that the Chicago Jury Project found was that the "real decision is often made before the deliberation begins." J. Alexander Tanford, The Trial Process: Law, Tactics and Ethics, Ch. 4, 4th ed. (2009 Carolina Academic Press).

Trial lawyers should not assume that openings win trials. Openings are very important, and a weak opening must be overcome. Every trial is different. If you believe that your opening is so strong that it will win your case for you, you are probably not being realistic about your case, the evidence, or your own power of persuasion.

Opening statements are critically important. Delivering an opening statement that is not compelling is, at best, a waste of an important opportunity; at worst, a major strike that could end up detrimental to your client's case.

Colorado

➢ Purpose. The purpose of an opening statement, whether in a criminal or civil

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