Opening Statement and Closing Argument

• Author: Leonard Bucklin
• Pages: 533-576

56-1 (Rev. 6, 6/10)

56. Opening Statement and

Closing Argument

Note: For more about opening statements

and closing arguments, look behind tab 20,

“Opening; Summation” in Volume 1 of this

text. There you will find additional discussions

and trial notebook forms, such as a checklist of

the objections that you can make during your

opponent’s opening statements.

§56.1 The Basics of Opening

Statements

Right or privilege.

In a jury trial, the opportunity (right or privi-

lege) to make an opening statement usually is

available. In state courts, usually the opportunity

to make an opening statement is not a matter of

statutory law. Rather the opportunity is pro-

vided because of custom taken from our English

common law heritage, or else is provided by a

court rule of procedure. For example:1

After the jury is impaneled and sworn

and the trial is ready to proceed, counsel

for the plaintiff may make an opening

statement to the jury. Counsel for the

defendant may immediately follow with

an opening statement to the jury or defer

it until the plaintiff has rested.

In federal court, the opportunity to address

the jury with an opening statement is only a

matter of the court’s discretion in providing a

fair trial. The norm in federal court is for the

court to grant an opening statement, but with a

short time limit. However, a small number of

federal judges have eliminated opening state-

ments by attorneys, and instead, the judge gives

the jury an opening speech to inform the jury in

a general way of the nature of the case and the

general nature of the facts. If you know you

have such a federal judge, submit a proposed

statement of the case for the court’s considera-

tion in the opening the judge will give the jury.

If you are trying your case to a judge only,

whether you are in a state court or in a federal

court, you only have a privilege (not a statutory

or rule given right) to make an opening state-

ment. When the judge is the fact finder, instead

of a jury, the judge has the discretion to hear, or

not hear, opening statements from counsel.

In a bench trial, always ask the judge for the

opportunity to make “an opening statement to

summarize what we will present.” Of course,

your opening statement to a judge will be dif-

ferent from the opening statement you would

make to a jury. With a judge, you interweave

the law with the evidence you intend to pres-

ent. But just as with a jury sitting as fact finder,

in a case tried to a judge, opening statement is

a time you can tell your side of the case, in your

own words, without cross-examination from

the adversary, in a continuous statement.

LTIP. Be ready to abbreviate your pre-

pared opening statement to a judge. Some

judges open a bench trial with a request

for you to tell him/her only what you

consider to be the most important issue in

the case. Also, a “one issue opening” is all

you maybe able to use with those judges

who make it their habit to say briskly

something like “I’ve read the briefs, so I

1North Dakota Rules of Court, Rule 6.2, Opening Statements. In some states, like the North Dakota example given

here, the opportunity to make an opening statement in a jury trial is granted as a right. In other states, it is only grant-

ed as a privilege.

2Karen Lisko, Stake Out Your Claims During Closing Argument, available online at www.litigationps.com/.../stake-out-

your-claims-during-closing-argument.html. Viewed on March 5, 2010. Dr. Lisko cites a good selection of the research

that has been done.

do not need opening statements; Counsel,

call your first witness.” If the judge does

make such a statement to you, you will

have to decide whether the temperament

of the particular judge will allow you to

press on with something like: “There are

a few remarks about one of the issues in

the case, which may be helpful before our

first witness. Let me explain that.” Then,

if not told to skip an opening statement

entirely, plunge into an extremely short

opening statement about the most impor-

tant issue in your case.

Who goes first?

Ordinarily, the party in a civil suit who has

the burden of proof has the privilege of mak-

ing the first opening statement. That is the rea-

son why ordinarily the plaintiff has the first

opening statement. However, courts have dis-

cretion to order a different order of presenta-

tion of opening statements. The most common

instance of giving the defense the first open-

ing statement occurs when the trial court

thinks that the case outcome depends solely

on an issue on which the defense has the bur-

den of proof. (E.g., where the defendant

admits doing the act charged, but claims an

affirmative defense.)

Never waive your opening statement.

Whether making an opening statement is a

right or privilege, it is not required that you

make one. The opening statement is far too

important to give away. You need to come out

of the starting gate strong. A good opening state-

ment has a lasting impact on the trier of fact.

Most [writers] agree, and research

demonstrates, the opening statement is

important because it creates a schema or

‘framework’ through which jurors filter

the subsequent presentation of evidence.2

If you want to persuade the fact finder, you

must give the fact finder your theme and your

idea of how they should organize the disparate

exhibits and facts they will see and hear. The

opening statement is the only place in which,

without having to reference the other side’s

version of the facts, you can give the fact finder

your theme and your proposed organization

for the disparate exhibits and facts. The open-

ing statement begins the process of persuading

the fact finder to vote for your client.

The defense opening statement should not

be reserved.

The rules of procedure provide that the

defense has the right to make an opening state-

ment immediately following the opening state-

ment by plaintiff’s counsel. Some defense

counsel make a practice of asking the court for

permission to reserve their opening statement

until the end of the plaintiff’s case-in-chief.

Most judges will grant a defendant’s request to

reserve opening until the conclusion of plain-

tiff’s case-in-chief.

If asked by other attorneys why they reserve

their opening statement, such defense counsel

say that affords them the luxury of not expos-

ing their case to the plaintiff’s counsel until

after the plaintiff has presented its case.

Frankly, that doesn’t make much sense in this

age of maximized discovery and court require-

ments that exhibits and witnesses are identified

before the trial.

Alternatively, such defense counsel says

that this allows them to tailor their opening to

the plaintiff’s actual case. Yet, any supposed

advantage in tailoring the defense statement to

the plaintiff’s actual case is overcome by two

disadvantages of postponement: loss of organ-

izing theme and loss of symmetry. Asking the

jurors to undo what they have done in mentally

organizing the evidence gets more difficult

with each passing witness. It is not only the

plaintiff that must — at the start of the case —

articulate a theme and story about which the

evidence will be grouped in the mind of the

jurors. A defense that reserves opening state-

ment is a defense that leaves the jurors, for half

the case, with only the plaintiff’s theme around

§56.1 BUILDING TRIAL NOTEBOOKS 56-2

3Best v. District of Columbia, 291 U.S. 411, 54 S. Ct. 487, 78 L. Ed. 882 (1934).

which to mentally organize the evidence. Gam-

bling that the jurors will mentally reverse

course when a reserved opening statement is

made is gambling against the odds.

The jury expects what Irving Younger called

“symmetry.” That is to say, the jury expects the

trial to be a contest between two sides. If one

side does something, they expect the other side

to respond for their consideration of the alter-

native version. If there is no response by the

defense, the juror’s mental state tends to shift

toward more ready acceptance of the plaintiff’s

description. The initial mood is: “He must be

right; the defense never said anything against

it.” At the least, reserving your opening state-

ment is not taken by the jury as a sign of great

cleverness on your part. The jury takes your

reservation statement as a lack of certainty on

your part about your position in the case.

Reservation of opening statement not only

allows the jurors to have a more ready accept-

ance of the plaintiff’s description, it also lessens

your credibility with the jury.

What am I supposed to do in an opening

statement?

The Supreme Court has summarized an

opening statement as “intended to do no more

than to inform the jury in a general way of the

nature of the action and defense so that they

may better be prepared to understand the evi-

dence.”3[Emphasis supplied.] Here is a law

school style outline of what the opening state-

ment is about. Generations of professors have

said these things, and judges recite them.

1. During the opening statements, attor-

neys are to outline the important facts

of the case, to assist the jury in under-

standing the evidence that will be pre-

sented during the trial.

2. An opening statement does not consti-

tute evidence, and the jury cannot rely

on it in reaching a verdict.

3. Argument is not proper during open-

ing statements. Attorneys may not

comment about the evidence, nor may

they comment about the credibility of a

witness. Nor may attorneys include

the inferences that the party wants the

fact finder to draw from the evidence.

Now here is what is important about the law

school outline above. It is simplistic, and it is in

part wrong. The legal theories stated in items 1, 2,

and 3 above are deficient. Here is the real world

outline of what you are supposed to do in an

opening statement.

• You are not there “to assist the jury.”

Get out of that mind-set. Instead,

understand that you are there to tell

the jury about the case in such a way

that it will persuade the jury to vote for

your client.

• Jurors use what the attorney states as

fact in the opening statement in their

mental process of reaching a decision.

It makes no difference to the juror that

what the lawyer says cannot be used in

defending post trial motions or appeals

attacking the verdict. As a matter of

psychological science, in making a

decision about the party for which they

will vote, a juror uses what the attor-

neys say in the opening statements.

• You should mildly argue during your

opening statement. Whether you can

insert mild argument into the opening

statement depends on how you do it.

You should comment about the evi-

dence and perhaps about the credibil-

ity of a witness. You can include infer-

ences that you think should be drawn

from the evidence.

What am I supposed to do during the

opponent’s opening statement?

Listen — really listen — to your opponent’s

opening statement. The jury expects you to be

courteous and pay attention. Not only that, if

you pay attention in the same manner as a juror

pays attention, you are better able to determine

what portion of your opponent’s case is most

appealing to them, and what probably sounds

weak to them. You can modify your own case

in chief accordingly.

Be ready to object to something said by your

adversary. There are very few times you will

56-3 OPENING STATEMENT AND CLOSING ARGUMENT §56.1

(Rev. 6, 6/10)