Thursday, January 26, 2012


Checklist of Pitfalls for Opening Statement

Don’t ruin your opening by stumbling into these pitfalls. Avoid:

 Preramble: “My name is . . . and I represent;” “As His Honor has told you everything we say in opening statement is not evidence . . .;” “First, I want to thanks you for your jury service because. . .;” “I want to apologize for . . .”
 “I believe . . .” Rule of Professional Responsibility 3.4(e)
 “Mr. X will testify that . . . Ms. Y will testify that . . . Then, Mr. Z will testify that . . .” An endless list of witnesses and what they will testify to. Rather, tell the story of the case.
 Past tense – “Jane saw.” Bring the story alive for the jurors with the present tense – “Jane sees.” Let them be eyewitnesses to what happened.
 “This is a complex case.” “This case is simple.”
 A podium unless the court requires otherwise. It’s conversational, not a lecture.
 Losing eye contact. Reading.
 A disconnect between the nature of the case and demeanor, such as anger in a forgery case.
 Just saying it. Visuals will bring the opening to life – tell and show.
 Trying to be someone you’re not.
 Not revealing an admissible weakness in your case.
 Mentioning inadmissible evidence (particularly if the judge has already excluded it as the prosecutor did in the Roger Clemens case) or evidence that may be excluded
 Going on too long.
 A case you don’t believe in – insincerity will show.
 Being themeless.
 Overpromising what the evidence will show or overstating the case.
 Misstating the evidence.
 Too many details.
 A weak beginning.
 A weak conclusion.
 Being boring.

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