Opening Statement - Strategies, tactics, and tips on how to make an effective opening statement.

Trial Skills, Evidence, & Basic Trial Procedure
10 Mar 202219:02
EducationalLearning
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TLDRIn this video, retired trial court judge Mark Curry shares his insights on crafting an effective opening statement in a trial. He emphasizes the importance of first impressions, the need for a concise and informative approach, and the use of exhibits to support the narrative. Curry also discusses the strategic choice of when to deliver the opening statement and warns against argumentative statements, advocating for a clear roadmap of the evidence to be presented.

Takeaways
  • πŸ—£οΈ The opening statement is the first opportunity for the jury or court to hear the explanation of what the facts and evidence will prove in a trial.
  • 🧠 First impressions are crucial; studies suggest that up to 80% of jurors begin to form opinions after the opening statement, emphasizing its importance.
  • πŸ›οΈ Even in bench trials, it's important to make an opening statement to ensure that the judge is fully aware of the case details and your arguments.
  • πŸ•°οΈ While some judges might impose time limits on opening statements, it's generally advisable to keep them concise to maintain jurors' attention.
  • πŸ“Š Exhibits can be shown during the opening statement to help the jury understand the case; however, it's best to discuss this with the court beforehand.
  • πŸ“š The opening statement should provide a 'road map' of what evidence will be presented and how it supports the theory of the case without being argumentative.
  • πŸ“– It's recommended to tell the story of the case twice: first, in a concise narrative format, and second, with more analytical details.
  • βš–οΈ Be cautious not to overstate or oversell your case during the opening statement to avoid giving the opposing counsel an advantage later.
  • 🚫 Argumentation is prohibited during the opening statement; focus on presenting facts and avoid making emotional appeals or commenting on the opponent's case.
  • πŸ“ Taking notes during the opponent's opening statement can be beneficial to address any unproven claims during your closing argument.
Q & A
  • What is the primary purpose of an opening statement in a trial?

    -The primary purpose of an opening statement is to provide the first opportunity for the jury or the court to hear the explanation of the facts and evidence that will be presented during the trial.

  • Why is making a good first impression during the opening statement crucial?

    -Making a good first impression is crucial because studies suggest that as many as 80 percent of jurors have already begun to form their opinions after the opening statement, which may influence their perception throughout the trial.

  • What is the significance of the 'story told twice' strategy in an opening statement?

    -The 'story told twice' strategy involves presenting the case narratively first, like a campfire tale, to give the jury a clear picture of the events, and then going through it analytically, detailing the evidence and how it will be presented, ensuring the jury understands both the big picture and the specifics.

  • Why should an attorney avoid making an overly dramatic prologue in their opening statement?

    -An overly dramatic prologue could come off as melodramatic and potentially harm the attorney's credibility with the jurors, as it may seem like they are play-acting rather than presenting a genuine case.

  • What is the recommended time frame for an opening statement?

    -An opening statement should generally not exceed an hour, even for complex cases. The goal is to keep it concise and informative without overwhelming the jurors with too much detail.

  • What is the role of exhibits in an opening statement?

    -Exhibits, such as photographs, diagrams, or videos, can be used during the opening statement to provide visual evidence and help the jury better understand the case from the beginning. It's important to discuss the use of exhibits with the court beforehand.

  • Why is it generally advised against to reserve the defense's opening statement until after the plaintiff's case?

    -Reserving the defense's opening statement until after the plaintiff's case could risk the fact-finder not knowing the defense's theories or expected evidence, which might lead to a disadvantage since the jurors' or court's initial impressions are critical.

  • What should an attorney do if they decide to make an opening statement in a bench trial?

    -In a bench trial, if an attorney decides to make an opening statement, they should ensure that the judge is fully aware of their case, has read the trial briefs, and is fully conversant with the details before proceeding.

  • What is the difference between argument and narrative in an opening statement, and why is it important to distinguish between them?

    -Argument in an opening statement involves making inferences, deductions, or emotional appeals, which is generally prohibited. A narrative, on the other hand, sticks to presenting the facts and evidence in a story-like manner. It's important to distinguish between them to avoid overstepping the rules and potentially confusing or alienating the jury.

  • What are some trial tips for using exhibits during an opening statement?

    -Some trial tips for using exhibits include discussing the procedures with the court during the pre-trial conference, previewing any exhibits planned by opposing counsel to check for any objectionable content, and ensuring that the use of exhibits is informative and relevant to the case.

  • How can an attorney effectively define the issues and theories in their opening statement?

    -An attorney can effectively define the issues and theories by first giving a brief introduction of the case, then relating the evidence in a narrative format, and finally breaking down the specifics in an analytical manner, ensuring that the jurors understand the big picture and the contested points.

Outlines
00:00
πŸ‘¨β€βš–οΈ Introduction to the Importance of Opening Statements

Mark Curry, a retired trial court judge with over 34 years of experience, introduces the topic of opening statements in a trial. He emphasizes their significance as the first opportunity for the jury or court to hear the explanation of facts and evidence. Curry outlines strategies and techniques for crafting an effective opening statement, cautioning viewers to confirm the current rules of evidence or law in their jurisdiction and to consider his advice as one perspective among many. He also notes the importance of first impressions, citing studies that suggest jurors begin forming opinions early in the trial process.

05:02
πŸ“œ The Role of Opening Statements and Use of Exhibits

Curry discusses the role of opening statements in setting initial impressions and the potential impact on the trial's outcome. He advises against reserving the opening statement for later, as it may leave the jury or court uninformed about the defense's theories and evidence. The use of exhibits during the opening statement is highlighted as a way to make the presentation more informative and impactful. Curry suggests discussing exhibit procedures with the court and opposing counsel before the trial to ensure smooth proceedings.

10:04
πŸ—ΊοΈ Structuring the Opening Statement as a Roadmap

The paragraph outlines a strategy for structuring an opening statement, which includes a brief introduction followed by a narrative overview of the case, akin to telling a story by a campfire. This is intended to provide a clear and concise understanding of the case from the client's perspective. The second part involves a more analytical breakdown of the evidence and witnesses, ensuring the jury has a comprehensive roadmap of the case's direction. Curry also references court opinions that support the narrative approach to opening statements.

15:05
🚫 Avoiding Argumentation and Overstatement in Opening Statements

Curry warns against turning the opening statement into an argument, which is prohibited. He advises defining the issues, addressing unfavorable facts preemptively to avoid surprises, and being cautious not to overstate or overpromise on the evidence to be presented. He also stresses the importance of listening to the opponent's opening statement for potential inconsistencies that can be used in the closing argument. The paragraph concludes with additional tips, such as keeping the opening statement concise to avoid overwhelming the jury and ensuring it provides a clear understanding of the case's big picture and contested issues.

Mindmap
Keywords
πŸ’‘Opening Statement
The opening statement is the first opportunity for attorneys to present their case to the court or jury. It sets the stage for the evidence that will be presented and is crucial in shaping the initial impressions of the fact-finders. In the video, Mark Curry emphasizes its importance, stating that it is where the fact-finders get into the 'meat' of the case and start hearing the facts and evidence.
πŸ’‘First Impressions
First impressions refer to the initial judgments made by jurors about a case after hearing the opening statement. The video cites studies suggesting that up to 80 percent of jurors begin to form opinions at this stage. This highlights the critical nature of crafting a compelling opening statement to influence these early perceptions positively.
πŸ’‘Bench Trial
A bench trial is a type of trial where the judge, rather than a jury, serves as the fact-finder and makes the final decision. Curry mentions that even in bench trials, attorneys should not shortchange the opening statement, ensuring the judge is fully informed about the case's details and theories.
πŸ’‘Burden of Proof
The burden of proof is the responsibility to provide enough evidence to convince the fact-finders of a claim's validity. In the context of the video, the party with this burden typically gives the first opening statement, outlining the evidence they plan to present to meet this requirement.
πŸ’‘Reserve
Reserving the opening statement means choosing to deliver it after the opposing party has presented their case. While this strategy might have tactical advantages, Curry advises caution, as delaying the statement could negatively impact the initial impressions on the fact-finders.
πŸ’‘Exhibits
Exhibits are physical evidence, such as photographs or diagrams, that parties may introduce during an opening statement to provide a visual aid for the jury. Curry suggests using exhibits to make the opening statement more informative and to help jurors understand the case from the beginning.
πŸ’‘Narrative
A narrative in the context of an opening statement is a storytelling approach used to explain the case in a连贯, compelling manner. Curry recommends beginning the opening statement with a brief narrative, akin to telling a campfire tale, to engage the jury and provide a clear overview of the case.
πŸ’‘Argument
Argument in an opening statement refers to the act of persuading or advocating a point of view, which is generally prohibited at this stage. The video clarifies that the opening statement should stick to outlining the evidence rather than making inferences or emotional appeals, which could be seen as arguing the case.
πŸ’‘Roadmap
A roadmap in the context of an opening statement is a metaphor for the structured outline of the evidence and arguments that will be presented during the trial. Courts have stated that the purpose of an opening statement is to provide a roadmap, helping jurors to follow the evidence and understand its relevance to the case.
πŸ’‘Campfire Tale
The campfire tale is a strategy suggested by Curry for delivering the initial narrative of the opening statement. It involves telling the story of the case in a concise, engaging manner, similar to how one might recount an interesting story around a campfire, to capture the jury's attention and provide a clear understanding of the events.
πŸ’‘Overstatement
Overstatement occurs when an attorney exaggerates or overpromises on the evidence or outcome of the case during the opening statement. The video warns against this practice, as unfulfilled promises can provide the opposing counsel with strong points for their closing argument.
Highlights

Importance of the opening statement as the first opportunity to explain facts and evidence.

Strategies and techniques for an effective opening statement.

Initial impressions formed by jurors after the opening statement can last throughout the trial.

Making an opening statement in a bench trial is crucial even if the judge is familiar with the case.

Keeping the opening statement concise due to jurors' limited attention spans.

The plaintiff or prosecution generally goes first in opening statements.

Consideration of reserving the defense opening statement until after the plaintiff rests.

Use of exhibits during the opening statement to provide a visual aid for the jury.

Discussing the use of exhibits with the court and opposing counsel before the opening statement.

The purpose of the opening statement is to prepare the jury's mind to follow the evidence.

The opening statement should provide a roadmap of what the party expects the evidence to prove.

Starting the opening statement with a brief introduction of the case.

Telling the case story twice: first as a narrative, then more analytically.

Defining the issues and explaining the cause of actions in the opening statement.

Addressing unfavorable facts in the opening statement to preemptively manage jury expectations.

Avoiding overstating or overselling the case in the opening statement to maintain credibility.

Listening to the opponent's opening statement for potential inconsistencies in later evidence.

The prohibition of argument in the opening statement and the focus on facts and evidence.

The opening statement should not exceed one hour to avoid overwhelming the jury.

Ensuring the jury understands the big picture and contested issues by the end of the opening statement.

Transcripts
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