OPENING STATEMENT FROM THE DEFENSE PERSPECTIVE BY JAMES C. MORROW MORROW, WILLNAUER & KLOSTERMAN, L.L.C. 53--1
Where Voir Dire is an opportunity to give the jurors an outline of your themes, opening statement is your opportunity to win the case. From the defense perspective, by the time you stand up for your opening statement, if plaintiff s counsel has done their job in both Voir Dire opening statement, you must take the jury back from the plaintiff or you will have an uphill battle throughout the case in an effort to try to win them back. As we all know, one of the psychological aspects at work is the primacy phenomenon. Jurors basic initial impressions are formed during Voir Dire and solidified in opening statement. During opening statement, it has been shown that jurors decide on a gut level who they think should win the case. They then look for evidence to support their gut level decision and they discount evidence that is presented that tends to contradict their position. YOU MUST HAVE A MESSAGE One of the most difficult things facing a defense attorney is the admitted liability case. In a case where a defense lawyer can argue liability issues, the lawyer can appeal to the jurors sense of right and wrong. That is not the case in an admitted liability case, and the difficult task is to try to keep the jurors on your side while you are arguing damages. In such situations, you need to make no excuses, and make it very clear to the jury that you are not blaming anyone else, but, instead, are taking full responsibility. The jury will tend to listen to your version of damages if they believe that you have credibly accepted the responsibility for the injuries to begin with. In those cases where you are able to argue liability, one of the most effective is an argument that awakens the juror s sense of injustice. Most people are not able to define what justice is, but all of us know from a common sense level what is unjust. As such, an argument to the effect that your client is being inappropriately blamed will allow the jurors to feel that they are preventing a wrong from occurring; a determination that they feel would result in injustice. That is why the empty chair argument can have a real effect. It is more difficult to do, 2 53--2
however, when you have co-defendants as pushing blame on each other will often times have no effect but to cause the jury to believe that the defendants collectively are not accepting blame, which will generally result in a higher verdict. YOUR FIRST IMPACT Plaintiff s counsel has just finished a 45 minute speech about the terrible things that your client did, terrible products, or the lawyer that failed his client. In the first 30 seconds of your response, you must tell the jury why your client is not liable. Often times, you can couch that in terms of causation, for example: able to sell it. Mr. did not cause this accident or plaintiff s injuries. Plaintiff s injuries were solely caused by. A short message to the point is the best way to get the jurors attention but you must be USE OF DEMONSTRATIVE EVIDENCE Do not be afraid to use your best photographs or documents right off the bat. You want to send a message to the jury that you have a position that is grounded in fact and is the right position. A photograph that is consistent with your theme is a great way to start out the opening statement, and it can then remain up as you develop the minutia of your story. Additionally, an admission that is very hard to explain away can be a powerful tool in the early stages of opening statement. TELL A STORY The jury does not want to be bogged down in dates, facts, and the problem at hand. They want to hear a story that has action and revolves around people. In fact, from the defense perspective, one of the tasks that must be done is to humanize the company or the corporation. That is done through its people. The jury must come to understand that those people are just like 3 53--3
them and that the decisions that those people made at a given point in time are not unreasonable decisions. As such, personalizing of your clients and witnesses is of vital importance. YOU MUST BUILD YOUR STORY BASED ON THE EVIDENCE One of the cardinal rules of opening statement is to not overstate the evidence. During opening statement, you are building a house, and the question at the end of the day is whether you have built a house of cards or a house of brick. If you tell the jurors something that you cannot prove, whether important or not, it will be pointed out to them in closing argument, and your house may teeter. If that fact is important to the case, your entire foundation will fail, and your house will come tumbling down. For that reason, I limit opening statement to those matters that I know can be proved through deposition testimony, documents, or photographs, and I never go out on a limb to include some piece of evidence that for one reason or another may not actually see the light of day. Before preparing an opening statement, it is best to outline your witnesses testimony and the cross examination so that you know precisely what the deposition testimony is and what documents will come into evidence unchallenged. You can then use those witness outlines to development the opening statement, which you will then be able to deliver in a strong, confident manner, as you will know that what you are stating will not be challenged and you will able to support your statements with the evidence. We are all aware of the adage that what is stated in opening statement is not evidence, but the reverse is imperative: only what will be in evidence should be stated in opening statement. USE OF DEMONSTRATIVE EVIDENCE As indicated above, you should always use demonstrative evidence in opening statements. The jurors will be much more likely to retain what is said if they can link it to particular documents or photographs. Moreover, I always have a large pad available to write on during opening statement. While low tech, there will be things that you do not include in your 4 53--4
PowerPoint, the documents or photographs, and it is always good to have access to an ability to jot down pertinent dates, a person s name, place, etc. so that the jury will then both hear and see. At times, you can also draw the accident scene or a piece of equipment, which will give the jury a better understanding as to what occurred. In document-intensive cases, such as legal malpractice cases or contract disputes, your documents should be either on a computer or shown thrown an ELMO. You can also make multiple copies of documents if you want the jurors to each have them in their hands during questioning. For opening statement, however, it is best to allow them to see the document or photograph. Be very careful with PowerPoint presentations that you do not just read along with the jurors as each new slide comes up. Jurors find that type of presentation to be quite boring and a little off putting, as most of them can read quite well, and they do not need you talking down to them by reading the screen for them. If one is going to use a PowerPoint, just have bullet points that can be used to frame the outline of your opening statement as opposed to lengthy explanations on the PowerPoint screen. CONCLUSIONS Do not be afraid to draw conclusions during opening statement. While one must be careful not to draw objections on the basis of argument, reasonable inferences and conclusions can be stated, and you should assist the jurors consistently with your theme. For example, if you are dealing with a products liability case, you must explain to the jurors the product, how it operates, and why it is that the product was not defective or why it is that plaintiff s fix for the product is unworkable. DELIVERY Many Courts require that counsel remain at the podium during opening statement. Other Courts allow a great deal of latitude. If you have a Court that does not require you to remain at 5 53--5
the podium, get away from it. Jurors are much more engaged by an attorney who is moving, not making a static delivery. I like to get as close to the jury box as I can, while also watching the jurors faces to make sure that I am not encroaching on their space. If you must stay at the podium, position it in such a way that you can effectively deliver your speech to all of the jurors while still having the ability to move behind the podium to put up pictures, your documents, or to write on the pad. DAMAGES Damages is a particularly difficult topic to address from the defense opening statement perspective. If you have a liability argument, I would recommend against talking about damages, other than to acknowledge the damages but then to argue that the damages were not caused by your client, the product, etc. Providing alternative damage figures or spending too much time on the injuries or damages can be read by the jurors as a weakness, and they may feel that you would not have been spending that time if you did not feel that some amount of damages was warranted. If, on the other hand, you are arguing an admitted liability case, you will want to talk to the jurors about what is a fair and reasonable damage for the injuries. As such, you need to make sure that you remain fair and reasonable, as the jurors will find you incredible if you downplay the damages so much in such circumstances. DEMEANOR The defense opening statement should be given in a confident manner. One should never leave the jury wondering what your evidence will be or what your position is with respect to the case. They need to know what you want them to do so that they can then sift through the evidence to find the precise evidence that allows them to return a verdict in your favor. You should never become angry, hostile, or personalize any aspect of the case or be disrespectful of the Court or opposing counsel. If things occurred during the trial itself that would allow one to 6 53--6
become righteously indigent, closing argument is where that emotion is best utilized. At opening statement, it is too early for the jurors to make determinations based upon the activities that have occurred in the courtroom as opposed to those that occur during the presentation of evidence. Make sure that you tell the jurors what you want them to do such as we will ask you for a defense verdict, we will ask that you return a fair and reasonable sum of money for plaintiff s damages. The jury needs to know precisely where you are headed and what you expect them to do. Above all, be yourself. Do not talk down to the jury--have a conversation and know your facts. 7 53--7