How I Learned to Love the Opening Statement
Written by NITA guest blogger, Senior Deputy District Attorney Amy Ferrin
I love Brussels sprouts. Tossed with olive oil and seasoning. Roasted until the edges are a bit crispy. Fantastic. Maybe I like them because they are so good for me, or maybe I truly enjoy their unusual flavor and texture; but I am the exception, not the rule. Most people offered Brussels sprouts have the same reaction as my husband: “Mini death cabbages. No thanks.”
Nearly every trial attorney, every member of a mock trial team, everyone who enjoys watching TV courtroom dramas delights in the “sexy” parts of the trial: cross-examination and closing argument. And while those parts of the trial make for interesting watching, I want to talk about the part of trial advocacy that is passed over like Brussels sprouts at a cook-out: opening statement.
Very few attorneys jump at the chance to give an opening statement; most see it as a necessary but undesirable part of the trial. Some of you reading may say, “That’s not true. I’ve known for years that opening statement is one of the most important parts of the trial.” You are correct. That is what you were told and it is what you repeat aloud when important people are listening. But let me ask you this: if you were trying a case with another attorney, and the division of labor is split such that one attorney gives opening statement and the other gives closing argument, which would you prefer to give? How many of you would feel a tinge of disappointment upon being assigned to give the opening statement? All good trial attorneys are told the value of opening statement, but very few of us actually internalize that value.
If you are in that camp—disappointed to be “left with” opening statement—I challenge you to rethink how you think about opening statement.
I’m not sure when I came to love opening statement. I learned how to do it well on my law school’s mock trial team. But learned to love doing it a few years into my first job as a trial attorney – when I was trying terribly difficult, but terribly worthy cases involving all types of child abuse. All of the sudden, the opening statement wasn’t just a phase of the trial that needed to occur so we could move on to the “sexy” parts of the trial. It was a phase in the trial that could truly make a difference.
Opening statement—for plaintiff’s counsel and prosecutors in particular—is your moment to take control of the trial. You get to set the stage, to give the jury the framework they should use to listen to and analyze all the evidence they are about to hear, and—significantly—you have the invaluable opportunity to frame all of those “bad facts” exactly the way you want to.
This “framing of the story” is crucial for so many reasons. First, it means you get to set the tone, the emotion for the trial. If your client is sympathetic, you get to set that stage. If your theory is about keeping emotion and sympathy out of the trial, you get to set that stage. If your opponent’s theory (and facts) are full of holes, you get to conjure the jurors’ skepticism before a single witness is sworn. Second, it makes the presentation of evidence easier. If you have given the jury a roadmap for the story, it doesn’t matter if you have to call a witness (or five) out of the preferred order. The jurors already know where to plug this witness into the framework you provided. Finally, if the story you framed for the jury fits with the evidence and fits with their reason and common sense, you are going to win. I know jurors are told repeatedly that they may not make a decision until all of the evidence is closed and they are deliberating with their fellow jurors. But, I also know that most jurors reach a conclusion after opening statement, and are simply waiting to see if the evidence fulfills the framework you created for them.
Finally, and I cannot emphasize this enough, an opening statement need not be flashy or catchy; it simply must tell a good story. One that is easy to follow and easy to fill in the facts as the evidence is presented during trial.
I am a realist. I don’t expect good trial attorneys to prefer opening statement to closing argument; closing argument is simply more fun. But increased appreciation for the value of opening statement combined with enthusiasm to do it well will serve you well: I believe you will win more trials.
I challenge you to add some bacon and hot sauce to those Brussels sprouts – they may never be the best thing on your plate, but make sure they get some much-needed love.
 William L. Burke, Ronald Poulson & Michael J. Brondino, Fact or Fiction: The Effect of the Opening Statement, 18 J. Contemp. L. 195, (1992) (80% of jurors decide the case for the party for whom they tentatively decided for after opening statement).
NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.
NITA’s Goals are to: