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Four Step Opening Statement

4 Step Opening Statement

INTRODUCTION

Studies show that upwards of 80% of juries make up their mind after opening statements.[1] Therefore it is important to give a strong opening statement. In all my trials I use the same four step process to achieve this goal.

THE FOUR STEPS

1) What is the Case About: The first thing I tell the jury is what the case is about. This is a brief explanation of my defense (i.e. John Smith clearly misidentified my client as the man who…). This will often only be a sentence or two long. Some attorneys will start their opening with “this is a case about…”,[2] and then tell the jury what their defense is.

2) What Happened: Next I tell the jury what happened without referring to any evidence. Some attorneys refer to this as the “theory of the case”. This is probably best described as the defense’s version of the events (there’s no need to retell damaging facts, unless you can minimize/explain them away).

3) The Evidence That Supports Your “Theory of the Case”: Next I state the evidence that supports my “Theory of the Case” (my version of the events). I usually go over the specific events that are important, and state the evidence that supports those events.

4) Why the Government’s Case Doesn’t Hold Water: Next I state why the evidence doesn’t support the government’s case. At this point the government will have already told the jury their “theory of the case” (version of events). Just as in step three I highlight the government’s events that are important, and explain why the evidence doesn’t support those events (or at least doesn’t prove those events).

ARGUING IN OPENING STATEMENT

We all know the rules of evidence do not permit arguments in opening statements. However, as a matter of practice attorneys often do make arguments during their opening. I use the same method mentioned above on all my opening statements, and I have never drawn an argumentative objection. For a better analysis on how much an attorney can argue in an opening statement see From O.J. to McVeigh: The Use of Argument in the Opening Statement, 48 Emory L. J. 107 (1999).

CONCLUSION

If you follow the above steps in your opening statement, it should allow you to quickly prepare your opening in an organized persuasive manner, without drawing any objections.

Foot Notes

[1] See D. Shane Reed, Winning At Trial at 65 (2007) (Citing James F. McKenzie. Eloquence in Opening Statement, Trial Dipl.J. at 32 (Spring 1987); Donald E. Vinson, Jury Psychology and Antitrust Trial Strategy, Antitrust L.J. at 591 (1986))

[2] See D. Shane Reed, Winning At Trial at 81 (2007)