Opening Statements

• Author: David A. Allgeyer
• Pages: 73-76

73

CHAPTER 11

Opening Statements

The time has now come. The hearing is about to start. The ques-

tion of opening statements will be the f‌irst thing to come up. So

should you do an opening? If so, what sort?

SHOULD YOU OPEN?

It is not unusual to waive openings at the arbitration hearing.

After all, you are trying to be eff‌icient and make good use of

time. In a patent arbitration, the parties have almost certainly

f‌iled detailed prehearing briefs. You may have already done a

Markman hearing and gotten a claim construction decision. So

why would you spend the time and energy preparing and pre-

senting an opening? Why not just get on with the evidence?

Skipping the opening may be appropriate in some arbitra-

tions. But I would suggest that you think long and hard before

foregoing this chance in a patent arbitration. Arbitrators tend

to appreciate someone who can clarify what is in dispute and

def‌ine exactly what issues they are being asked to decide before

hearing evidence. An opening gives the advocate a chance to do

that. First impressions count, and this is time that can be used

to make a good one.

Because arbitrators are professional decision makers,

trained and skilled in carefully analyzing facts and law and

reaching the right decisions, f‌irst impressions may not be as

important in arbitration as in a jury trial. But still, why waste