of the screenwriter’s apothegm, “What
happens is fact, not truth. Truth is what
we think about what happens.”2
The purpose of the opening is to
frame the issues and the evidence. This
is a key time when jurors are open to
persuasion but skeptical of rhetorical
embellishment. They’re wondering
what the case is about and looking for
clues to help them decide which side is
telling the truth and which is shading it.
Jurors compare the opening with what
they already believe is true, what they
believe is likely, what they believe makes
sense, and what they believe is fair. This
is the time to tell them a story—a story
that is like one they already know.
A successful opening frames the case
on the plaintiff’s terms. It focuses on
what you think is important about your
case and steers away from what you
want the jury to discount. The jurors
must understand what the facts mean as
soon as the opening statement is over.
Story Essentials
Opening statement should lead the jury
through the evidence to the results you
want by telling a story that puts the facts
and evidence in context, emphasizes the
case theme, and evokes important elements of the case with images.
Context. The stories that most plaintiff lawyers tell about their clients have
inherent persuasive power—after all,
they generally deal with suffering and
loss—yet some trial advocates still insist
on turning opening statement into an
argument. They believe they have to
outline their contentions in a legalistic
manner to make their case or invoke oratory to empower their facts.
Your facts, without inference, have all
the power they need—if presented to a
jury in an accessible schema—to tell your
story. At this stage in the trial, jurors are
not yet ready for anything adversarial. It
should never be a complicated, didactic
lecture. Jurors tend to be skeptical of lawyers who launch into early advocacy, so
avoid judgmental adjectives and adverbs.
Use plain nouns and verbs. Tell your story
in a neutral, just-the-facts way.
Consider recasting the story in contract terms: Show how the defendant
broke its contract with society to refrain
from causing others harm by engaging in
rule-breaking behavior The book Rules
of the Road, by Rick Friedman and Pat
Malone, is a helpful guide to this framing
theory.3 Its linchpin is what trial consultant David Ball calls the “umbrella safety
rule,” the widest general safety rule the
defendant violated.4 The safety rule must
be broader than the single client or the
single event—it must be a rule that will
protect both your client and your audience. For example, a single laborer who
was sent in to clean a closed vessel at a
refinery dies in a toxic atmosphere. The
rule here: “A plant must be constantly
aware of all risks its operations can pose.”
A young college student is killed when
the driver of an 18-wheeler fails to slow
down in a construction zone. The rule: “A
commercial driver should never expose
others to a needless risk of harm.”
Of course, you’ll need to determine
which rule or rules apply to the facts in
your case. Standards for conduct may
be written or unwritten, but the most
powerful proof of a rule is something
in writing—like a driver’s manual. Most
industries have written rules: Hospitals
promulgate, maintain, and enforce procedures and rules governing the operation of their institutions and patient
A successful
opening frames the
case on the plaintiff’s terms.
It focuses on what you think
is important about your case
and steers away from what you
want the jury to discount.
