A prior post (This is How to Begin Your Opening Statement) discussed how to grab the jury’s attention at the beginning of opening statement. This post covers the body of an opening statement and the concluding remarks.
After beginning your opening with an attention-getter, you want to tell a compelling narrative story. This can be done with a flashback, starting with a dramatic part of the story and following that by beginning at the beginning and telling the story chronologically. Or you could tell the story in chronological order, starting at the beginning. Otherwise, don’t jump around because a chronological story is what we remember best.
The body of your opening should tell a story about a human being or multiple people, usually your client(s). It describes the event or events in dispute, and it should be about human values and human needs. The body of the opening should be a story of good versus evil that gets the jurors to care. Also, the opening should introduce the players in the story.
Watch this clip from The Staircase, which is a documentary about a murder trial in North Carolina made by a French director. The documentary is unique in that it captures not only what happened in trial but also behind the scenes for both the prosecution and the defense.
As you watch, note the attention-getting opening using a contrast of the pictures of the victim before and after the damage to her skull. Watch how the prosecutor humanizes her. He describes the dispute, and he tells the story visually with pictures, diagrams and the blow poke.
Every case has its weaknesses, some minor and sometimes major. What if anything can be done about case weaknesses? It may be so trivial that you can ignore it. However, if you ignore a significant weakness, then when the other side reveals it, the problem is compounded because it looks like you tried to hide it. You may be able to eliminate the weakness with a motion in limine if it is inadmissible.
If the weakness is significant, defang it if at all possible. Fully disclose the weakness and put it in its best light. Disclose it at the right time. Start strong, finish strong and bury in middle is good adage. But, weave the weakness into story. For example, if a witness changed their story from the first report, build that into the chronology. First, she didn’t mention something when first interview because she was traumatized but the next day she told full account accurately.
Should you discuss damages, and if so, in what depth? For the plaintiff’s lawyer, views differ, and it depends on case. As plaintiff’s lawyer, you can focus on liability. Convince them of liability and when convinced, then deal with the award. Another approach is to cover the consequences of each injury. As to the amount, plaintiff’s lawyer can speak in general terms—”in the millions” Or, as plaintiff’s lawyer, you can give the jury an amount, so they understand the magnitude.
Defense counsel may be reluctant to discuss damages because that would appear to concede liability. But you can discuss damages without conceding, as in the following example:
“We all sympathize with the family. What happened is tragic. But, this trial is not about whether the family deserves sympathy. You jurors are here to decide whether the men and women of Clean Corporation, who designed and manufactured this chain saw, are responsible for the accident. (Tell the story of what happened.)
“That’s what happened. The evidence will show that the folks at Clean Corporation did not cause his death. You should never reach the question of damages. However, plaintiff’s counsel has talked to you about damages and the money they want. Therefore, let’s look at what they are asking . . . (Follow with the deficiencies in the damages calculations and other issues relating to damages.)”
Start Strong and end Strong. A good conclusion to opening replays the theme, states why the jury should render the verdict and requests a specific relief.
In the Novell case, Microsoft’s counsel ended this way:
“We think that at the end of the case you will find that there is no liability, that there was no anticompetitive conduct, and that Novell wasn’t hurt by anything Microsoft did. We also think that you will find that the operating system competition would not have been affected; Windows would have remained just as popular as it was regardless of the NameSpace extensions APIs. And lastly, even if you thought that there was some liability, we will ask you at the conclusion to determine that damages are zero because the decline in WordPerfect and Quattro Pro and the suite was a function of Novell’s misjudgments and Novell’s bad business choices and also of the great products that Microsoft was making. Thank you.”
Replay the theme, tell them why they should render the verdict and tell them what the verdict should be.
Here’s a prosecutor concluding the opening: “As I said at the outset, the defendant did it not for love, not out of anger, he killed her out of greed. At the end of this trial, we will ask you to return a verdict that the facts dictate and that justice demands. That verdict is guilty.”
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