How to Write an Opening Statement

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How to Write an Opening Statement

Opening statements, whether in a trial or a mediation are the only opportunity for a first impression on the decision-makers in the case, be it the judge, jury, or opposition. First impressions are critical for starting a relationship in any capacity in the right tone. A bad first impression may end up costing someone a friend, colleague, or in a courtroom, the case.

A good opening statement gives out the case’s key points without confusing or overwhelming the other side. It demonstrates the attorney’s confidence in their case and how they see the outcome of the trial or mediation.

Yet crafting a stellar opening statement is difficult. Each jury or decisionmaker will have their own take on the case and may not see the importance of the issues in the statement. Opposing counsel will often try and pick apart the opening statement made by the other attorney with their own, which can make it difficult to determine what to include and what parts to strategically leave out.

This article will outline the path to crafting an opening statement that will grab and hold the attention of the jury and may help gain a favorable verdict. It will focus on the opening statements made in trials, as mediation opening statements are much more focused on cooperation than argument. However, some of the tips from this article can help an attorney representing a client in a mediation craft a great opening statement as well.

Defining Opening Statements

The opening statement is the first statement that either attorney will make to the jury in a trial. Within the opening, the attorneys will outline their case in a digestible and accessible way to ensure that the jury understands when and what to focus on. It is the first opportunity to speak to the jury from the perspective of the client and have the jurors listen to the case as a story, rather than a list of questions.

Opening statements introduce important facts and witnesses and present the questions as the party giving the opening statement would like. The opening statement is not a long and complicated argument for the jury to follow, but it should present a map for the jury to follow as they move through the case.

Typically, the plaintiff, the party that is suing the other, will give their opening statement first, followed by the defendant, who is defending the suit. The jury is picked in the days leading up to trial, and this is the first time that all of them will collectively hear the facts of the dispute. It can help them access the case and ground themselves in the law and the facts.

It helps jurors understand what to expect and gives them options for their conclusion. A stellar opening statement tells a client’s story of the case in an accessible and clear manner.

An opening statement is not the place for the parties to argue the facts of the case or place an immense intellectual burden on the jury. There is little room for discussion, and the other party is not allowed to raise any objections unless the opening statement veers away from the parameters of overviewing the case and violates the rules. However, these objections do not happen often, and ensuring that counsel is prepared and understands the matter will ensure that an opening is the best it can be.

The Importance of a Good Opening Statement

As a first impression of the lawyers from either side, the opening statement is important to the overall story and theme of the case. Additionally, an opening statement can establish either party’s credibility and shape the dispute for the jury.

Credibility

The opening statement is the point in the trial where the attorney will present the case according to the client. It is also where the parties will present an outline of their case to the court and outline the evidence and important facts that will be a part of the trial. Lawyers will often tell the jury what to expect from witness testimony and the other proof that will be presented. Because of this, the jurors will be waiting for this evidence to be presented, and if it is not presented as promised, the attorney and the client they represent will lose credibility.

This can affect the outcome of the case and ultimately result in a lost case. Ensuring that the opening only references what will come to light ensures that the credibility of the position and case stays intact.

Shaping

In addition to bolstering credibility, an opening statement can shape the way that the jury views the story. By including the important points of law and referencing the facts that make the case, a skilled attorney can deliver a story that is intended to sway the jury and resolve the dispute in their factor. They can also highlight facts that may not work well for the opposing side and give context for points that may not work well for their own.

By influencing the way that the jurors hear the facts and the case, they can address each point of evidence and explain to the jury what each side believes happened. This presentation of the facts and law can ensure that the jury sees their point of view from the beginning.

Crafting the Best Opening Statement

Because the opening statement is such a vital introduction to the case for the jury, it is important to spend time and energy preparing for the opening statement and not let it be the last thing to get done. However, crafting an opening statement after preparing the rest of the case can be advisable to ensure that it follows the evidence and theme developed by the rest of the case.

Important Considerations

There are a few questions that lawyers can consider when drafting an opening statement. The answers to these questions can help a lawyer write their statement and can impact how they frame their statement and what to include.

Who is the Audience?

In most cases, the audience will be the jurors that decide the matter although a judge may occasionally be the decisionmaker. When the jury is the audience, the speaker will need to make sure that they help the jurors understand the goal of the trial and what the court needs to know. Explaining terms or including an example or two can be the difference between an opening statement that holds the jury’s attention or one that loses it.

It can also be important to understand who the jurors are and how they may think. During jury selection, lawyers may be able to pinpoint who will be more sympathetic to their client’s story and who will be against it. This can help them prepare for resistance and to work to engage the people who will not agree from the start. Identifying the positions of jurors will help a client’s story be the winning narrative at trial.

What is my Theme?

Another key aspect of the opening statement is the theme of the case. This is the narrative element that pulls the jurors into the story of the case from your client’s point of view. The theme should explain what your client wants and why they should achieve this goal. It should pique the interest of the jury and ensure that they immediately understand the arguments for the case. It should also be short and allow the jury to remember it easily.

What can I prove?

Finally, it is important to understand which aspects of the argument can be proven throughout the trial. By highlighting the issues that are guaranteed to be admitted and tying them into the overall theme of the case, a lawyer will gain credibility as each piece of evidence or idea is presented in court.

Basic Overall Structure

To write an opening statement, you need to understand the basic structure of the opening. Some attorneys may learn to write an opening statement in mock trials or from articles on sites such as this one or the American Bar Association. The steps and structure listed below will help you craft an opening statement that is effective and persuasive, whether in a mock trial competition or a trial in court.

Introduction

The opening statement will begin with the introduction. This is where counsel will identify themselves, share the theme, and identify the question or law that is at issue in the case. The introduction is necessary to place the jury in the right frame of mind to receive the rest of the information. Without giving them a theme and a question of law that needs to be addressed, the jurors will likely spend the rest of the time looking for an explanation for what they just heard. By doing so, both the plaintiff and the defendant help ensure the jurors understand their theory of the evidence and the law.

Burden of Proof

Next, counsel will often outline what the burden of proof under the law is in the case. This will begin the body of the statement. Most laws will either outline elements that need to be proven or outline a discussion of the factors needed to prove the case. In the opening statement, counsel will be able to outline the burden of proof under the law and argue why their version of what happened either satisfies or does not satisfy the burden. While this is not a full argument, it helps the jury identify what to look for throughout the presentation of the evidence.

Witnesses and Evidence

After outlining the elements of the case, a lawyer should then describe the various types of evidence they will include. This will include mentioning the key witnesses and the facts that their testimony will provide. It should also outline any documents that will be admitted and provide the context for these documents. This is the true body of the opening statement and should highlight the witnesses and documents that will be the most likely to produce the desired outcome for the plaintiff or defendant.

It allows the jurors to listen for and place each of the witnesses and documents in the proper place while they evaluate the evidence and prepare a verdict and preventing pieces of evidence from being lost in the trial.

Conclusion

Finally, the opening statement should end with a conclusion that reminds the jury of the theme and ask the jury to reach a verdict for either the plaintiff or defendant depending on the case. It is the one place to outline the arguments to come and ask the jury to side with your case.

Tips for Presenting an Opening Statement

A great opening statement is not reliant solely on the writing, but it is more likely to be believed and acknowledged if the speaker can deliver it in a way that sparks the interest of the jurors. Because of this, the person who will deliver the opening statement will not only have to prepare for the body of the statement but also for how to introduce it. There are a few things to consider when preparing to give the opening statement.

Tone

The tone that the statement is given in will affect how the jurors perceive the credibility of the lawyer. You will need to be confident in what you are saying, but you will also need to not cross the line into detailing too much and losing interest or credibility by appearing too confident.

For example, counsel who speaks highly of a specific piece of evidence giving affirming something that they cannot prove will likely lose credibility. Yet if they are sure of their position and honest about the issues with the position, they will likely gain credibility.

Another example may be speaking with such confidence that the counsel comes across as thinking that the jury is beneath them. This can be offputting and undermine the entire case.

Practice

The opening statement is a speech and the jurors will be more likely to keep their interest in the speech if the person speaking delivers their statement with poise, which will only come with practice. One particularly important consideration is whether or not to use notes while delivering it, which may end up distracting the jurors and causing a rift. Through practice, you will be able to speak with authority and not rely on notes to give the body of the statement.

If you can craft and deliver an opening statement that builds credibility, shapes the questions in the case, and keeps the jury interested, you will set yourself up for success from the beginning. Click here to learn more about opening statements, mediation, and more from ADR Times.

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Emily Holland
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