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Opening Statement

Further Readings

An introductory statement made by the attorneys for each side at the start of a trial. The opening statement, although not mandatory, is seldom waived because it offers a valuable opportunity to provide an overview of the case to the jury and to explain the anticipated proof that will be presented during the course of the trial.

The primary purpose of an opening statement is to apprise the trier of fact, whether jury or court, of the issues in question and to summarize the evidence that the party intends to offer during the trial. The Supreme Court has characterized an opening statement as "ordinarily intended to do no more than to inform the jury in a general way of the nature of the action and defense so that they may better be prepared to understand the evidence" (Best v. District of Columbia, 291 U.S. 411, 54 S. Ct. 487, 78 L. Ed. 882 [1934]).

Most practitioners and legal scholars agree that an effective opening statement is vital to the trial process. The importance of an opening statement has been established by studies that showed that 80 percent of jurors' ultimate conclusions with respect to the verdict corresponded with their tentative opinion after opening statements. This is because an effective opening statement establishes the facts of the case and sets forth a legal theory and explanation for why the attorney's client should prevail.

An opening statement may be either a matter of right or a privilege depending on applicable state and local laws. A party may waive its option of presenting an opening statement because opening statements are not mandatory.

If a party chooses to give an opening statement, the party with the BURDEN OF PROOF will usually present its opening statement first. In a civil case, this means that the plaintiff's attorney presents an opening statement first. In a criminal case, the burden of proof rests on the prosecution. Therefore, the prosecution will be first to present an opening statement.

The defense may present its opening statement after the plaintiff or prosecution has given its opening statement. The defense also has the option of reserving the opening statement until after the plaintiff has presented its case. Courts have discretion to direct a different order of presentation of opening statements if it finds good reasons for such change in order.

Opening statements allow attorneys for each side to introduce themselves and to introduce the parties involved in the lawsuit. Additionally, attorneys will usually outline the important facts of the case during the opening statement to assist the jury in understanding the evidence that will be presented during the trial. An opening statement generally contains a brief explanation of the applicable law and a request for verdict. In a request for verdict, the attorney explains the verdict sought and explains the facts that will support the verdict. A well-planned opening statement serves as a road map of the trial.

Opening statements are often informal and narrative in form. The attorney tells the client's story and explains to the jury what the evidence will show. An opening statement, however, does not constitute evidence, and the jury cannot rely on it in reaching a verdict. The opening statement should be brief and general rather than long and detailed.

An attorney is limited in what he or she can say during an opening statement. An attorney may not discuss inadmissible evidence. This is especially true where the evidence was ruled inadmissible in a pretrial motion hearing. The attorney must reasonably believe that the matters stated will be supported by the evidence. In addition, statements that are purely argumentative are not proper during opening statements. An attorney may not assert personal opinions, comment about the evidence, or comment about the credibility of a witness during an opening statement.

Objections by opposing counsel during an opening statement are appropriate where the attorney presenting the opening statement engages in improper conduct. If the attorney fails to object to the inappropriate conduct, the objection is deemed waived, and the attorney cannot complain of such misconduct later in the trial.

A court usually has the discretion to employ one of several remedies for misconduct during an opening statement. The most common remedy for misconduct during an opening statement is jury admonition, where the judge simply instructs the jury to disregard the improper statement. Where misconduct is more serious, however, the following remedies may be available: (1) counsel may be cited for misconduct or CONTEMPT; (2) a mistrial may be declared; (3) a new trial may be ordered; (4) an appeal may be taken based on the misconduct.

An attorney can make damaging statements during the opening statement that legally bind the client. Such statements, known as "admissions", are not limited to the opening statement but can occur throughout the litigation process. Attorneys must use caution during the opening statement to avoid making damaging admissions.

The court may decide the case after the opening statement and before the jury ever has the opportunity to hear the evidence. A court can properly take the case from the jury where it is clear from the opening statement that the plaintiff cannot succeed on the merits or that the defendant has no valid defense. This is usually accomplished by an attorney bringing a motion for a directed verdict. Taking the case from the jury is an extreme measure and exercised with great caution. Courts favor allowing a case to be tried on its merits and rarely grant a directed verdict after the opening statement.

A strong opening statement will have a lasting impact on the trier of fact. It is often the jury's first introduction to the parties, the issues, and the trial procedure. The opening statement begins the process of persuasion, the ultimate goal of which is a favorable verdict.

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