Opening Statements

AuthorFaith Dianne Pincus
ProfessionAttorney and former Federal Law Clerk
Pages147-152
147
CHAPTER THIRTEEN
Opening Statements
Karen Kimmey, Farella Braun + Martel
The opening statement is the attorney’s first opportunity to tell the jury
what the case is about and what the attorney expects the testimony and
evidence will show. It is also counsel’s first real opportunity to establish
his or her themes and build rapport with the jury. In order for an opening
statement to be effective, it is critical that the attorney has carefully prepared,
planned, developed, and practiced the opening statement. The attorney
should discuss his or her theory of the case. The statement should include
all of the uncontested facts as well as the client’s version of the disputed
facts. It should be non-argumentative, logical, simple to comprehend, and
believable. In short, the opening statement is storytelling.
Opening Statement Theme
Every opening statement should have a theme. The theme shared in the
opening statement should be revisited throughout the case and should
be reinforced by the evidence. As a result, it is critical that the attorney is
well prepared and has an intimate understanding of the facts, deposition
testimony, witnesses, evidence, strengths, weaknesses, and jury instruc-
tions. This intimate understanding of the complete case will help the
attorney develop the theme that will assist the jury in remembering and
understanding the case from the client’s perspective.
Ideally, the theme will be one that resonates with jurors and is consistent
with their existing views on how people act and what motivates behavior.
The theme should be relatable and not legalistic. For example, a theme like
“This is a case about a defendant who made a promise, but then regretted
it and is now trying to get out of the deal he made” is more effective than
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