Trial Practice Series Opening Statements: A Preview of Coming Attractions

WDC Journal Edition: Summer 2017
By: Emile H. Banks, Jr., Emile Banks & Associates, LLC and William R. Wick, Nash, Spindler, Grimstad & McCracken LLP

Note on the "Trial Practice Series": This is the second in a series of articles dealing with trial practice, the brainchild of Bill Wick at the Nash Law Firm, a co-author of this article, and continues the effort to have an article on some aspect of trial and litigation practice in each issue. The intention is to provide a practical view of common aspects of the litigation and trial process. WDC members are invited to contact Bill or Andrew Hebl, the Journal Editor (ahebl@boardmanclark.com), to suggest future topics that may be of interest.

I. Introduction

The authors of this Article have participated in more than 300 jury trials, and the purpose of this Article is to share their views and techniques that may be useful in presenting opening statements in civil cases. One might consider an opening statement to be similar to a preview of coming attractions one sees at a movie. An opening statement is a preview of the evidence that will be presented during a trial. It is designed to tell jurors what the case is about and to capture their attention. This may be done in many ways. Lawyers have varying styles for delivery and differing views on the effect of opening statements.

An opening statement provides counsel with the first opportunity to tell the jury what the case is about, what evidence will be presented, and who the witnesses will be. Counsel may also present the theme or theory of the case to the jury in an opening statement. Many trial lawyers believe the case may turn on what is said in an opening statement because people place the greatest emphasis on the initial information they receive about a person or event. Studies have shown a majority of jurors make up their mind about the case during the opening statements and do not change their opinion during trial.1 Despite these studies, the experience of the authors has led them to conclude that most jurors still listen to the evidence and make their final decision based on all of the facts and the court’s instructions. Nevertheless, an opening statement is a crucial tool that can be utilized by counsel to provide the jurors with guidance about what will be important in making their ultimate decision.

II. Purpose

An opening statement has a narrow purpose and scope. The purpose of an opening statement is to provide an outline of what counsel expects to prove to enable the jury to better understand the evidence that is presented.2 The jury should be told what evidence will be presented in order to make it easier to understand and process the ensuing evidence and how it relates to the issues in the case. The opening statement should advise the jury of the questions of fact they must decide and what evidence will be significant in making their decision.

The purposes of an opening statement include presenting the jury with a clear picture of the case, creating interest in the facts, and building rapport. The opening statement gives counsel an opportunity to advise the jurors that there are two sides to the issue, and to request that they withhold their decision making until all the evidence has been presented and the court’s instructions have been given.

III. Regulation

There are no statutory provisions addressing the procedure to be followed when giving opening statements, other than that they must be transcribed by the court reporter pursuant to Wis. Stat. § 757.55 and SCR 71.01. Case law discussing issues that may arise related to opening statements is sparse. This is likely due to the fact that opening statements are not at the heart of the controversy. Thus, any error related to an opening statement is likely to be overshadowed by the evidence presented and the jury’s verdict, rather than what occurred at the beginning of the trial.

Opening statements are given in every trial and the procedure is weaved into the fabric of trial practice. While some legal commentators have discussed a party’s right to waive an opening statement, the authors have never seen this done and do not envision a reason for this to occur.

With the opportunity for full pretrial discovery and the demise of trial by ambush, most opening statements will be given by counsel at the beginning of the case. However, there is also some commentary about deferring opening statements, which represents a strategic choice that may be effectively employed in the appropriate case. The most effective use of this strategy is during a multi-week jury trial with multiple defendants. One or more defendants present their opening statements at the conventional time—at the beginning of the case immediately after the plaintiff—providing the jury with the defense’s theory of the case, while one or more of the other defendants present opening statements after the plaintiff rests. After having the benefit of hearing the plaintiff’s evidence, the deferring defense attorney or attorneys now have the tremendous benefit of re-engaging the jury to the defense’s theory of the case.

It is generally accepted that the trial court has discretion to limit the time allotted for opening statements as part of the court’s general authority to determine the mode of trial. With the proliferation of legal television shows, in which a case is often tried to verdict well within an hour, a concise, well organized presentation of expected evidence is golden and usually well-received by the jury and the court. If counsel are given time limitations by the court, it can be helpful to request that the court provide a five minute expiration warning in order to allow for an appropriate wrap-up.

There is no specific provision dealing with sequestration of witnesses during opening statements. However, the court is required to exclude witnesses, except parties and persons shown by a party to be essential to the presentation of the party’s case, from the courtroom when requested by counsel.3 The purpose of the statute is to exclude witnesses so they cannot hear testimony, but it is silent about witnesses hearing opening statements. That said, it seems to be within the trial court’s discretion to exclude nonparty witnesses during opening statements if a motion to do so is made.

IV. Content

An opening statement should inform the jury what counsel believes actually happened based on the investigation and the evidence that will be presented. The opening statement needs to tell the story in a simple manner that focuses on the key facts, rather than on extraneous details. An opening statement should mention points of contention to help the jury focus on the issues. Presenting the case to the jury in plain and simple language and identifying the general nature of the dispute should be the primary focus of an opening statement.

In presenting the opening statement, counsel may characterize it as the first opportunity to “speak with” the jury about what evidence will be introduced. Counsel should attempt to personalize their client and, if appropriate, point out that the case is about the actions of a person and not those of an insurance company or corporation.

Since one of the purposes of an opening statement is to tell the jury what the evidence will show, many lawyers think that frequently making statements such as “we believe the evidence will show” and “we will prove” emphasizes this purpose of the opening statement. Counsel may believe that by using these phrases, it is less likely there will be a claim that counsel is arguing. However, statements such as, “Mr. Smith will tell you” or “when Dr. Jones examined the plaintiff and found” have the same effect while sounding less legalistic.

An effective technique in an opening statement is to present a theme for the case. Examples of themes may be scientific fact rather than anecdote, observation, or conjecture; verifiable proof as opposed to subjective views and speculation; and written records rather than memory. Jurors may be told that the case is based on what is reported shortly after the event rather than weeks or months later, or that the view of what happened changed over time. An example of a theme for a slip and fall accident on ice could be “winter in Wisconsin,” while the theme for a low velocity impact auto accident may be “science v. myth” or “causation v. association.”

It is undisputed that opening statements are not evidence.4 It is believed by some that emphasizing that the opening statement is not evidence may detract from the significance of the presentation. An alternative approach may be to state that the opening statement is not evidence, but that the evidence is the testimony and documents received into evidence by the court, which in turn will reflect the facts described. An accurate forecast of the evidence that will be presented is the best persuasive process.

Defense counsel should also look for ways to distinguish their proof from that of the plaintiff. The disparity in qualifications between experts and the facts showing which party had the best opportunity to make accurate observations should be emphasized. Showing inconsistent statements in comparison to the accurate accounts of what transpired can also be used to support the theme of the case.

The presentation may be divided as follows:

• Introductory remarks;

• Introducing the parties and witnesses;

• Identifying the major issues;

• Telling the story/summarizing the facts;

• The conclusion; and

• Requesting a favorable finding.

At the start, most attorneys introduce themselves and their clients and explain the order of trial. Counsel may explain the procedural order of trial—e.g., that the plaintiff goes first and it is only after the plaintiff is done with his or her case-in-chief that the defense is allowed to call witnesses. Some counsel explain the basis for knowing what will be proved by advising the jury that there are discovery procedures requiring the pretrial exchange of information. The analogy that a trial is similar to putting together a jigsaw puzzle may be used. The cover of a jigsaw puzzle box shows what the finished puzzle should look like. A puzzle piece is comparable to a piece of evidence. When the trial ends, the pieces of evidence should come together and enable the jury to reach a verdict, just as the pieces of the puzzle are connected in order to complete and mirror the picture on the box.

It should be noted that, at the end of the trial, the jurors may—and opposing counsel often will— compare the evidence presented to what was promised in the opening statements. One needs to be aware that opposing counsel is likely to point out in final argument how the evidence differed from what counsel represented during opening argument. Because jurors may compare the representations made in the opening statement to the evidence actually presented, counsel should resist overstating the case. This is critical; making inaccurate predictions during opening statements about the evidence that will be presented at trial—i.e., making “promises” that the evidence will demonstrate one thing where it ultimately does not, and counsel therefore fails to “deliver” on the “promise”—is a big mistake. For this reason, counsel must try to be accurate about how the evidence will come in during opening statements in order to maintain credibility with the jury during the trial. Stated otherwise, if counsel does not “deliver” on the “promises” made during opening statements about what the evidence will show, the jury is less likely to believe anything else that counsel has said during trial, including counsel’s closing argument.

Every case, particularly from the defense perspective, has inherent weaknesses. The majority of trial lawyers and psychologists who have examined the approach to litigation strongly suggest that weaknesses in a case should be disclosed in the opening statement. The purpose is to present the law in the case in as positive a manner as possible and to reduce the negative impact of the opponent’s emphasis. It is also to show the jury that counsel is being honest and forthright about the merits.5 In dealing with weaknesses in the case, counsel may need to admit that their client was impaired by drugs or alcohol, but must point out that the impairment did not cause or contribute to the outcome. In the alternative, counsel may acknowledge that the plaintiff sustained an injury, but point out the nature and extent of that injury and the fact that the permanent residuals are disputed, and then explain how the evidence will support this view.

Some attorneys might think avoiding mention of weaknesses is worthwhile because opposing counsel may overlook the weaknesses or not point them out to the fullest extent. This violates the rule that one should never underestimate opposing counsel. Others may believe that mentioning the weaknesses may draw unnecessary attention to them. However, the fact is that jurors are likely to figure out the weaknesses in the case anyway and, if they were not mentioned during counsel’s opening statement, question why they were not addressed. If the jurors question why counsel failed to mention the negative evidence, counsel’s credibility might be affected adversely.

Another concern is how far counsel can go in explaining the law. Opening statements usually provide some explanation of the applicable burden of proof, the standard of care by which the issues are judged, and the duty owed by one party to the other. If one seeks to go beyond these basic tenets of the law, it is suggested that the judge and opposing counsel be advised of it beforehand so that, if there is going to be an objection, it is not dealt with in front of the jury.

The use of demonstrative evidence in opening statements may be an issue. Demonstrative evidence includes simulations, photographs, charts, graphs, models, flip charts, and overhead projections. In this day of the Internet, social media, and smart phones, increasing emphasis is placed on video presentations. Frequently, PowerPoint presentations are used during an opening statement to outline the proof that will be offered. Whether demonstrative evidence such as pictures, summaries, or PowerPoint presentations may be used during opening statements is within the sound discretion of the court. There is little guidance in the case law with regard to the use of demonstrative evidence and visual aids during opening statements. In James v. Heintz,6 the court stated that the use of diagrams, charts, and graphs in opening statements is a matter of discretion for the trial court. It was error, however, when the only reason given by the court for refusing to permit pictures of an accident during the opening statement was because the pictures were not marked as exhibits.7

The recommended approach when demonstrative evidence is sought to be used in an opening statement is to obtain permission from the court or a stipulation from the opposing party. If a simulation or diagrams require a significant evidentiary foundation before admissibility can be determined, objection should be made to their use until the foundation for admissibility is established. Having said that, the adage may simply be to take the position that “the eye can see what the ear can hear”—i.e., if the content of the demonstrative evidence is such that it would be permissible for counsel to use words to describe that content during the opening statement, the demonstrative item itself also ought to be permissible to show to the jury.

In complex cases where terms will be used that are not in the daily vernacular of most jurors, a glossary of terms may be prepared and used in opening. This may be helpful in understanding technical jargon that later will be part of the testimony.

In preparing the opening statement, counsel should give consideration to the concepts of primary, repetition, and multiple-sense involvement. The most important things should be presented first. There should be repetition throughout the presentation. Repeating things helps to emphasize their significance. The information heard last is what may be remembered the most by jurors. In addition, involving multiple senses should be considered and may prove to be invaluable. The phrase “a picture is worth a thousand words” should not be overlooked.

V. Statement Not Argument

It is universally accepted that an opening statement may not consist of argument. Counsel should not ask the jury to resolve conflicts in the evidence, tell them how to apply the law to the facts, or state a personal opinion. However, an opening statement should still be persuasive. In essence, the opening statement is the “GPS” that counsel wants the jury to use to find its way through the evidence.

The point at which statements about proof become argument is likely to be a question of semantics. When a statement of fact turns to argument is often a matter of how it is phrased. If the assertion is about something that will be proved, it is not argument. If counsel makes a statement that is not susceptible to proof, it is argument. If the representation is about something a witness can state from the witness stand, it is not argument.

Examples may help to illustrate the difference. If the proof will be that a driver was traveling 80 miles an hour, it would be argumentative to characterize it as an “excessive and unreasonable speed.” Stating that the driver was texting just before the accident is fact, while describing the driver’s action as “not paying attention and unacceptably dangerous” may be argument. If counsel asks the jury to decide a fact in a certain way, draws an inference from the fact or voices an interpretation of the facts, this is argument. If counsel suggests that a witness is good, truthful, or worthy of belief, it is likely to be deemed argument. Negative statements about the opposing party or the witnesses are considered argument. Statements making characterizations, such as “the hired gun for the insurance company” or the “lazy inattentive driver,” are likely to be considered argumentative. Contending that counsel’s purpose is simply to get the defendant “off the hook” or to “save the insurance company money” is also clearly improper.

VI. Objections

If a party believes in advance that potentially inadmissible evidence may be used in an opening statement, a motion in limine is of course the best way to raise the issue. This may not always be possible, and objections during opposing counsel’s opening statement may be necessary. The most common objection to an opening statement is that counsel is arguing. Whether an objection should be raised during opposing counsel’s opening statement is a matter of trial strategy and involves discretion. Counsel may be reluctant to object during an opening statement, and in many cases should be. As discussed in the previous section, the definition of “argument” in the context of an opening statement is not always clear. When counsel steps over the line is not always predictable or certain. Lawyers do not wish to be seen, especially early in the case, as obstreperous or obnoxious objectors in the eyes of the jury. Ultimately, counsel may decide that an objection will simply call attention to the subject matter or unduly emphasize it, and choose to deal with it in some other way instead. However, if opposing counsel’s statements are clearly inappropriate argument and the judge is likely to sustain an objection, then an objection should be made. Not only that, but if the argument or comment is particularly egregious, a motion for mistrial may be necessary in order to preserve the error for appeal.

In addition to objecting to argument, objections should be raised during opening statements when the subject matter is clearly inadmissible, such as characterizing the defendant as “dishonest” or “lying,” as opposed to comparing the observations of one witness to another and to the facts that will be proved. Vouching for the credibility of a witness by counsel is also inappropriate. It is usually considered improper for counsel to give a personal assurance of credibility, or to suggest counsel has information not available to the jury supporting the credibility of a witness. It is not objectionable, however, for counsel to state that an attorney represents a party and the party’s insurance company.

Prohibited remarks during opening statements may include the following:

• Irrelevant prejudicial remarks;

• Unsupported accusations;

• An improper implication of misconduct;

• Financial circumstances of a party;

• Disparaging remarks about counsel, parties, or witnesses;

• References to previous trials or verdicts;

• Prior compensation for the injury;

• That the outcome of the case may affect the juror, such as by increased premiums or higher taxes;

• The golden rule approach–i.e., asking the jurors to place themselves in one of the party’s shoes and asking them to treat the party as the jurors would wish to be treated;

• Addressing jurors personally during opening statement;

• Asking for sympathy for your client; and

• Dealing with matters of race, nationality, or religion.

To preserve an objection during an opening statement, counsel must object and cite the specific grounds for the objection in order to have it preserved for appeal.8 The strategy and exercise of discretion involved in deciding whether and when to raise an objection during opening statements can, at times, be as important as the giving of the opening statement itself.

VII. Conclusion

An opening statement should be an accurate preview of the coming attractions that will be offered by that party during the trial. The opening statement should have a theme, tell a story, deal with the adverse facts, and advise the jury who will testify and what they will say. The important facts should be emphasized. The opening statement should be concise, delivered in a manner comfortable to the presenter, and delivered in a conversational tone that is not argumentative. The goal of the opening statement is to set the table for a closing argument that will be an embellishment of the opening statement. After presenting a carefully crafted opening statement, counsel’s end goal should be the ability to say to the jury during the closing argument, “I told you so.”

Emile H. Banks, Jr., born Chicago, Illinois, February 2,1959; admitted to bar, 1984, Wisconsin and U.S. District Court, Eastern and Western Districts of Wisconsin.

Education: Ohio Northern University, (J.D.,1984). Phi Alpha Delta. Associate Research Editor Ohio Northern Law Review, 1982-1983. Super Lawyer for Wisconsin, 2005-2016 (voted Top 50 Lawyers in Wisconsin 2008-10 and 2014-16) (voted Top 25 Lawyers in Milwaukee 2016). Former Member, Supreme Court of Wisconsin Board of Attorney Professional Responsibility Investigative Committee; Board Member, State Bar of Wisconsin Litigation Section.

Member: State Bar of Wisconsin, (Member, Chief Judge Subcommittee on Juror Treatment and Selection); American Bar Association; Wisconsin Association of Minority Attorneys; Wisconsin Defense Counsel; Defense Research Institute; International Association of Defense Counsel; National Association of Bond Lawyers; National Association of Minority & Women Owned Law Firms; Council on Litigation Management; Federation of Defense and Corporate Counsel (FDCC); American Board of Trial Advocates (ABOTA); International Society of Barristers;

Fellow: American College of Trial Lawyers; Fellow: Litigation Counsel of America.

William R. Wick, is a defense lawyer who concentrates his practice in the areas of medical malpractice and general personal injury litigation. He received his B.S. in 1970 from Carroll College, his M.P.A. in 1972 from the University of Southern California, and his J.D. in 1974 from Marquette University Law School. Mr. Wick was certified by the American Board of Trial Advocacy as a Civil Trial Specialist. He is a member of the State Bar of Wisconsin and a past chair of the Litigation Section. He has also been President of the Civil Trial Counsel of Wisconsin now known as the Wisconsin Defense Counsel. Mr. Wick is a fellow of the American College of Trial Lawyers and a member. He has also been President of the Wisconsin Chapter of the American Board of Trial Advocates (ABOTA). He has also been selected to be included in Best Lawyers in America for the last ten years. Mr. Wick is a frequent lecturer on topics involving civil litigation.

References
1 William L. Burke, Ronald L. Poulson, and Michael J. Brondino,Fact or Fiction: The Effect of the Opening Statement, 18 J. Contemp. L. 195 (1992).
2 Wis. JI-Civil 50.
3 Wis. Stat. § 906.15.
4 Wis. JI-Civil 110.
5 Daniel Linz and Steven Penrod, Increasing Attorney Persuasiveness in the Courtroom, 8 Law & Psychology Rev. 1, 13-14 (1984).
6 165 Wis. 2d 572,478 N.W.2d 31 (Ct. App. 1991).
7 Id. at 580-81.
8 Wis. Stat. § 805.11(2).