Section 8.6 Permitted Scope

• Library: Civil Trial Practice 2015 Supp

V. (§8.6) Permitted Scope

Because an opening statement is scarcely ever limited as to time, it becomes important to consider what it should encompass. Obviously, it should be factually comprehensive, yet easy to understand. Some lawyers advocate saying as little as possible on the theory that whatever is said must be clearly proved. Others feel obliged to detail every single fact and inference. Because both techniques have advantages, no hard-and-fast rule can reasonably be made. But it is clear that no one needs to state all facts essential to proof of a cause of action or defense, and it is not required that a defendant deny facts stated by opposing counsel. An opening statement is a privilege, not an obligation. Zabol v. Lasky, 498 S.W.2d 550, 554 (Mo. 1973); Hays v. Mo. Pac. R.R. Co., 304 S.W.2d 800, 805 (Mo. 1957); Schwartz v. Fein, 471 S.W.2d 679, 680 (Mo. App. E.D. 1971).

As noted in §8.1 above, because counsel has considerable latitude in an opening statement both as to what to say and what not to say (Hays, 304 S.W.2d 800; Nat’l Dairy Prods. Corp. v. Freschi, 393 S.W.2d 48 (Mo. App. E.D. 1965); Zabol, 498 S.W.2d 550; Brissette v. Milner Chevrolet Co., 479 S.W.2d 176, 180 (Mo. App. E.D. 1972)), an opening statement is usually vulnerable to appellate reversal only when an appellant can demonstrate a clear abuse of the trial court’s discretion, Porter v. Erickson Transp. Corp., 851 S.W.2d 725 (Mo. App. S.D. 1993); Martin v. Sloan, 377 S.W.2d 252, 259–60 (Mo. 1964); Tyler v. Kansas City Pub. Serv. Co., 256 S.W.2d 563, 565 (Mo. App. W.D. 1953); Lord v. Austin, 39 S.W.2d 575, 577 (Mo. App. E.D. 1931).

Despite such broad ground rules, there are areas of danger that the careful advocate, in fear of reversal, would do well to avoid.

References to pretrial efforts to settle are dangerous. Starnes v. St. Joseph Ry., Light, Heat & PowerCo., 52 S.W.2d 852, 855 (Mo. 1932); Jackson v. Farmers Union Livestock Comm’n, 181 S.W.2d 211, 221
(Mo. App. W.D. 1944). But counsel for a condemnor got away with telling a jury that “we” make appraisals and an offer to the property owner before condemning. State ex rel. State Highway Comm’n of Mo. v. Select Props., Inc., 612 S.W.2d 866, 870 (Mo. App. E.D. 1981). A later case refused to reverse when reference was made to settlement efforts, holding that it was proper to establish that a vehicle dealership had had an opportunity to cure as required by the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, Pub. L. No. 93-637, 88 Stat. 2183. DeLong v. Hilltop Lincoln-Mercury, Inc., 812 S.W.2d 834, 843–44 (Mo. App. E.D. 1991).

A reference to a newspaper account of an accident is improper. Shields v. Kansas City Rys. Co., 264 S.W. 890, 895 (Mo. 1924).

Normally, references to widowhood are improper, but permissible when recovery of lost earnings and medical expenses are sought. Goldstein v. Fendelman, 336 S.W.2d 661, 665–66 (Mo. 1960).

References to obvious hearsay should be avoided. Cade v. Atchison, T. & S. F. Ry. Co., 265 S.W.2d 366, 370 (Mo. banc 1954); Underwood v. City of Caruthersville, 184 S.W. 486, 488 (Mo. App. E.D. 1916).

References to the defendant’s obvious wealth—e.g., references to stock transfers, loans, and numerous lawsuits—are dangerous. Vosevich v. Doro, Ltd., 536 S.W.2d 752, 759 (Mo. App. E.D. 1976); Cantrell v. Superior Loan Corp., 603 S.W.2d 627, 641–42 (Mo. App. E.D. 1980).

Earlier cases condemned references to the number of the plaintiff’s children, but this now seems permissible if it is connected to the plaintiff’s injuries so that the plaintiff’s ability to experience pre-accident associations with the children was impaired. Tennis v. Gen. Motors Corp., 625 S.W.2d 218, 223 (Mo. App. S.D. 1981).

One area, treated in two decisions, involved references to compliance in tort cases with the National Electric Safety Code. In Freeman v. Kansas City Power & Light Co., 502 S.W.2d 277 (Mo. 1973), counsel stated that the code had “been accepted as the standard of Missouri,” to which objection was made and overruled. But the error did not warrant reversal because:

· the jury was instructed that the defendant’s duty was to exercise the highest degree of care;

· the defendant’s vice president testified that the code provisions were only minimum standards; and

· the defendant’s expert also testified to that effect.

The second case was Ellis v. Union Electric Co., 729 S.W.2d 71 (Mo. App. E.D. 1987), in which the code was referred to as a “guide,” and it was said that counsel would be talking about the “guideline” set by the code. This error was also held to have been cured by evidence that the code set only minimum standards.

Another example of cure by evidence appears in...