Opening Statement

• Author: Jim Wren
• Pages: 419-444

15-1

15. Opening

Statement

Chapter 15

Opening Statement

I. The Importance of the Opening Statement

§15:01 The Three Vital Phases of Trial

§15:02 We Adopt Viewpoints at an Early Stage

§15:03 The Value of the Underlying Principles

II. What Jurors Don’t Need

§15:10 Unsupported and Argumentative Conclusions

§15:11 Overly Dramatic Presentations

§15:12 Arguments or Plays for Sympathy

§15:13 Things That Waste Their Time

III. What Jurors Do Need

§15:20 Answers to Their Basic Questions

§15:21 Facts Presented in a Coherent Format

§15:22 A Credible Source

§15:23 A Sense of Significance to Their Role

IV. Key Components of the Opening Statement

§15:30 Considering the Foundation

§15:31 Structuring the Opening Statement

V. Constructing and Presenting Each Part

§15:40 The Goals of the Introduction Phase

§15:41 Constructing and Presenting the Introduction

§15:42 Constructing the Conflict (Bad Choices) Phase

§15:43 Constructing the Crisis (Hostage Taking) Phase

§15:44 Constructing the Conclusion (Chance for Rescue) Phase

VI. Additional Concerns

§15:50 Inoculate Against Bad Facts the Right Way

§15:51 Handle Argumentative Objections in Stride

§15:52 Explain the Burden of Proof the Right Way

§15:53 Don’t Buy Into the Language of the Defense

§15:54 Remember You’re on the Right Side

§15:01 Proving Damages to the Jury

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15. Opening

Statement

I. The Importance of the Opening Statement

§15:01 The Three Vital Phases of Trial

There are three vital phases of trial that I believe should receive the highest allocation of

time for final trial preparation:

• Voir dire: The case can turn on the composition of the jury and the initial

impressions of the jurors. [See Chapter 14, Voir Dire.]

• Opening statement: This provides the first full opportunity for the jury to hear the

case and establish fully formed beliefs about the case, the parties, and the lawyers.

• Cross examination: This allows you to solidify the beliefs of jurors by validating your

story through the opponent’s key witnesses. [See Chapter 17, Cross Examination.]

§15:02 We Adopt Viewpoints at an Early Stage

All of us generally find it uncomfortable to remain in a state of indecision because it

means we have to continue evaluating and weighing the full extent of new information as it

comes to us. It is more comfortable to adopt a viewpoint, even if only tentatively, because

that allows us to filter and simplify the processing of new information.

Then, as long as new information is not so powerful that it causes us to change our

viewpoint, it doesn’t have to be fully analyzed. Moreover, the longer we persist with our

tentative viewpoint, the more entrenched it becomes.

Jury studies illustrate this phenomenon. A 1996 study found that 70% of mock jurors

decided on a private verdict following opening statements, which continued to remain

constant throughout the full presentation of evidence. [S.S. Diamond, J.D. Casper, C.L.

Heiert, A. Marshall, “Juror Reactions to Attorneys at Trial,” Journal of Criminal Law and

Criminology, Vol. 87, pp. 17-47.]

Other studies report higher and lower percentages, but the same basic concept. [Amy J.

Posey and Lawrence S. Wrightsman, Trial Consulting, pp. 101-102.]

Although there may be other possible reasons at work, the adoption of a viewpoint

by jurors immediately following opening statements, which then tends to remain constant

throughout trial, is consistent with our natural tendency to persist in beliefs once they have

been formed. This is often referred to as a confirmation bias. [See Raymond S. Nickerson,

“Confirmation Bias: a Ubiquitous Phenomenon in Many Guises,” Review of General

Psychology (1998) Vol. 2, No. 2, 175-220.]

Obviously, if a high percentage of jurors tend to persist in the beliefs they form during

opening statements, then a persuasive opening statement is of crucial importance. The test of

effectiveness is simple: If the jurors were to retire immediately after the opening statements,

would they feel compelled to return a verdict for the plaintiff? [John F. Nichols, Sr.,

“Opening Statements” from Jury Trial in a Box, State Bar of Texas 2008 (quoting Cone &

Lawyer, Personal Injury Practice Manual, p. 224) (available at www.TexasBarCLE.com).]

§15:03 The Value of the Underlying Principles

Preparation of a powerfully persuasive opening statement is not simply a paint-by-the-

numbers, fill-in-the-blank process.