Opening Statement Skills
Content
Provides an overview and theory of the case.
Discusses the issues, the parties, and the burden of proof.
Organization & Development
Organized to maximize the decision maker's comprehension and retention
while telling a coherent story.
Topics arranged in a persuasive sequence with logical transitions.
Wording
Words and phrases advance the opening's purpose.
Client
Client is humanized.
Anticipation
Conflicting or negative evidence is handled in an effective manner.
Delivery
Tone, pacing, voice and body language enhance the opening.
Documents/Exhibits
Exhibits are used effectively.
Relationship
Appropriate attitude is conveyed toward the judge/jury
Opening Statement When There Is No Jury
Opening statements are as important in an administrative hearing and a
judge trial as it is in a jury trial. Most of the materials on opening
statements discuss them in terms of a jury trial, leaving the impression
that openings are unnecessary in a judge trial and absolutely forbidden in
an administrative hearing.
Whether they admit it or not, judges can be persuaded by a brief,
organized opening. It may be more difficult to convince a judge or
administrative law judge of the value of an opening in the abstract. If
your openings prove to be helpful to the judge, however, you may find your
opening is not resisted but heartily welcomed.
In the beginning, you may have to devise a strategy for getting the judge
to listen. One approach might be to say that in the interest of time you'd
like to briefly clarify the issues before you question your witnesses.
Contrast this approach with a request like, "Your honor, I'd like to
present my 20 minute opening statement."
Also be aware of any tendency you may have to refrain from making openings
because "no one else does it" or you want to appear to be a "good ole boy
or girl" who "knows the ropes." Your main concern should be presenting the
best case on behalf of your client. In his book, Trial Advocacy (West
1975), James Jeans, a renowned trial lawyer and advocacy teacher, talks
about these attitudes as the tendency of lawyers to "mimic mediocrity."
A good opening statement —
• Describes the theory of the case
• Describes the parties, the issues, the witnesses and burden of proof
• Humanizes the client
• Anticipates negative evidence
• Is brief and to the point
• Includes visual aids where appropriate
The skills involved in making an opening statement are outlined in Opening
Statement Skills below.
Some experienced advocates begin to visualize their openings immediately
after the initial client interview. They add polish and shine after they
have written their closing and outlined the direct and cross-examination
in their case. The materials in Chapter 10 Trial & Hearing Notebook
suggest a way to prepare openings. The Opening Statement Worksheet
contains key words and phrases where you can jot down your thoughts during
the life of your case.
The Opening Statement Outline suggests an order in which to present your
opening. As you get closer to the hearing or trial date, you can translate
your Opening Statement Worksheet notes into a more linear format. Finally,
you can write out or put key words and phrases in the Opening Statement
Form with added pages if necessary.
All openings should be prepared in advance and practiced. You should not
read the opening, but deliver it in a persuasive way that is consistent
with your style and the forum where you are presenting it.
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