how much detail can a lawyer go into the evidence during opening statement

The opening statement allows both sides to give the judge and jury an overview of the case, including what they plan to prove and how they plan to prove it (what evidence they will offer in support of their claims). Prosecutors and defense attorneys generally have considerable latitude in what they're allowed to say in opening statement.

Full Answer

How to write an opening statement for a criminal case?

Identify and understand the purposes of your opening statement. An opening statement is meant to help jurors comprehend the case, focus on important evidence, and provide context. Before writing your opening statement, you are going to want to grasp why the opening statement is so important.

What should a lawyer do when giving an opening statement?

When giving an opening statement, the lawyer should place her side in the best possible light and tell a story that will make the jury want to decide in her favor. Jurors often base their decisions about the case on the impression received during the opening statement. Lawyers can connect with the jury by telling an enjoyable story.

Can opening statement be used as evidence?

Opening statement is not evidence. Opening Statement should not be used to “argue”? case to the jury. (A very “gray”? area) Exclusion of witnesses in discretion of the trial court California Evidence Code §777 (a); C.C.P. §128 (a) (3).

How long should an opening statement be in court?

Depending on the complexity of your case, your opening statement may be longer or shorter than 15 minutes. The closer you can get to a 15 minute opening statement, the better off you will be. Be confident and deliver the opening statement you prepared and practiced.

Can you talk about evidence in an opening statement?

Opening statement is intended as an outline of a party's anticipated proof. 3. Opening statement should not refer to matters that are not to be presented as evidence.

Can lawyers lie in opening statements?

Prosecutors and defense attorneys generally have considerable latitude in what they're allowed to say in opening statement. That said, they're not allowed to "argue" (argument is saved for closing), nor are they allow to refer to inadmissible evidence or facts they don't intend to or can't prove.

What should you not do in an opening statement?

TEN DON'TS OF OPENING STATEMENTSDON'T Use Big Words. ... DON'T Ignore Weaknesses of Your Own Case. ... DON'T Attack Opposing Counsel. ... DON'T Argue the Case. ... DON'T Display Affectations. ... DON'T Ignore Your Client. ... DON'T Ignore Jury Instructions. ... DON'T Rush.More items...

Can you object during an opening statement?

Objections, though permissible during opening statements, are very unusual, and by professional courtesy are usually reserved only for egregious conduct. Generally, the prosecution in a criminal case and plaintiff in a civil case is the first to offer an opening statement, and defendants go second.

What if a lawyer knows his client is lying?

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

Do lawyers have to tell the truth?

Lawyers must be honest, but they do not have to be truthful. A criminal defense lawyer, for example, in zealously defending a client, has no obligation to actively present the truth. Counsel may not deliberately mislead the court, but has no obligation to tell the defendant's whole story.

What should my opening statement include?

An effective opening statement is built around a theme that can be summed up in a simple word or phrase or in a single sentence. The theme developed should be straightforward, clear, and designed to catch and hold the jury's attention. It should get directly to the heart of the dispute.

How do you write a defense opening statement?

A strong defense opening statement will do the following:Tell a story. ... Plant the defense themes. ... Make concessions only with great caution. ... Make the defense case concisely. ... Humanize the defendant. ... Make no promises about the defendant testifying. ... Argue the defendant's case. ... End on a high note.

Should you memorize your opening statement?

For most attorneys in most settings, it isn't realistic to memorize the entire text of an opening or closing. And even if you had the time, a memorized presentation might sound recited or stale. But what you can memorize is your outline… assuming you have one, and you definitely should.

How long should an opening statement be?

between 10 and 45 minutesMost opening statements take between 10 and 45 minutes, although, depending on the complexity of the case, some may take longer. Some jurisdictions have developed rules for how long opening statements, as well as closing statements, may be.

How do you beat a speculation objection?

Sometimes courtroom objections based on speculation can be overcome by rewording a question, particularly in state of mind conclusions. A witness may not testify to a state of mind, but they can testify to what they saw.

Can you object during closing arguments?

A closing argument may not contain any new information and may only use evidence introduced at trial. It is not customary to raise objections during closing arguments, except for egregious behavior. However, such objections, when made, can prove critical later in order to preserve appellate issues.

What is the opening statement of a jury?

A. Opening Statement. C.C.P. §607 (1) — When the jury has been sworn unless the court, for special reasons, otherwise directs: (1) The plaintiff may state the issue and his case; (2) The defendant may then state his defense if he wishes or wait until after the plaintiff has produced his evidence.

What is counsel's view of disputed facts?

Counsel’s view of disputed facts — permissible; (but opinion that witness is liar is improper) Discussion of applicable law is permissible (especially jury instructions) Improper to argue re: excluded evidence, matters not in evidence, misstatements of evidence or law.

What is a statement made without good faith?

Statements made without “good faith”? belief. Argument. Discussing applicable law (with limited exceptions) Statements of personal belief or opinion. In the event of misconduct by opposing counsel, timely objection and request for jury admonishment is required (to avoid waiver of claim of prejudice on appeal). See, Brokopp v.

Is opening statement evidence?

Time limits within sound discretion of trial judge. (Such limits are normally prearranged in discussions with judge pre-trial.) Opening statement is not evidence. Opening Statement should not be used to “argue”? case to the jury.

What is the opening statement in a trial?

The opening statement is the lawyer’s first opportunity to address the jury in a trial. Generally, the party who bears the burden of proof ( plaintiff in a civil case or prosecution in a criminal case) begins the opening statements, followed immediately after by the adverse party ( defendant ).

What is the purpose of opening statements?

Purpose. Opening statements are intended to give the jury a preview of the case. An opening statement describes the parties, outlines the nature of the issue in dispute, presents a concise overview of the facts and evidence so that the jury can better understand the overall case, frames the evidence in a way that is favorable to ...

Why do defenses not make opening statements?

The defense may choose not to make an opening statement so that they do not lock themselves into one theory for acquittal, which affords them the flexibility to pursue an affirmative defense or rely on the inadequacy of the opposing party’s evidence to meet the burden of proof.

What happens if you fail to deliver on proofs promised in an opening statement?

Failure to deliver on proofs promised in an opening statement can lead to counsel’s loss of credibility. It can give the adversary, at closing, an opportunity to argue that the party’s case was not made. An effective opening statement is built around a theme that can be summed up in a simple word or phrase or in a single sentence.

What happens when a lawyer reads only from notes?

When lawyers read only from notes or fumble for words, they appear unprepared, and opportunities are lost. Trial counsel should be well prepared and make eye contact, leaving the jury with the impression the attorney is pleasant, professional, and competent, and knows the facts and believes in the client’s case.

What should a trial counsel do after introducing the theme?

After introducing the theme, trial counsel should present the client’s case in the best and most accurate light possible, telling the story in a way that will make the jury want to decide in the client’s favor. Jurors often base their decisions about disputes on the impression received during an opening statement.

What happens if a plaintiff's counsel introduces bad facts?

If plaintiff’s counsel introduces the bad facts about the plaintiff’s case, defense counsel may not need to address them, or defense counsel may need to clarify and put them in what he or she regards as the more proper context. Addressing a bad fact out of context, however, can lead jurors to give it undue weight.

Why should an opening be given to the jury?

An opening should establish the credibility of the attorney giving it so the jury is persuaded to trust the testimony, documents, and other evidence eventually offered for its consideration.

What is the importance of an opening statement?

An opening statement, therefore, needs to be carefully planned. It should offer an understanding of the dispute and the parties involved in it. It should give an overview so the jury can better understand the evidence that will later be presented. An opening should establish the credibility of the attorney giving it so the jury is persuaded to trust the testimony, documents, and other evidence eventually offered for its consideration.

Why is an opening important?

An opening should order important facts to support the dispute’s theme. A successful opening also will tell an engaging story from a client’s perspective, describing logically what happened. Chronological organization is often employed because jurors may have an easier time following a linear story.

Why should lawyers engage their audience during trial?

Lawyers should engage their audience during trial, and effective themes combined with engaging stories can fight juror boredom . Lawyers have a better chance later of persuading the jury if the jury likes their opening statements.

What makes an opening statement effective?

Themes and storytelling are what make opening statements engaging and effective. The story of the case tells the jury what happened chronologically either from the viewpoint of the plaintiff or defendant. When giving an opening statement, the lawyer should place her side in the best possible light and tell a story that will make ...

How do lawyers connect with jurors?

Lawyers can connect with the jury by telling an enjoyable story. These stories are persuasive and become embedded in a juror’s mind when they make sense, are stated in plain language, and have a beginning, middle, and an end. For example, tell the jury how they will learn about the plaintiff’s lack of knowledge.

Why do lawyers have one sentence themes?

Emotionally based themes often serve as anchors, creating impressions for the jury that linger until the time the verdict is decided. Themes keep the jury’s attention and help them organize information.

What is the opening statement?

The opening statement provides the first impression of the case and shapes the impressions of the jury. The opening statement provides the first impression of the case and shapes the impressions of the jury. An opening statement forecasts to the jury the evidence they will see and hear during the trial—it allows the jury to know what to expect ...

What does a lawyer do when a plaintiff introduces a bad fact?

A lawyer must essentially make a determination on a case-by-case basis as to whether to introduce the bad facts. If plaintiff’s counsel introduces the negative information, it may not be necessary for defense counsel to bring it up again in her opening statement.

How to convey that someone fell after the milk spilled?

If you want to convey that the person fell after the milk had spilled, present the events by describing the puddle of milk on the floor, and follow immediately with the slip and fall.

What is the opening statement of a trial?

The opening statement is one of the most important components of any trial. It is your first opportunity to present the case to the jury, and to shape the jury’s perspective of the entire trial. The opening statement also is your first opportunity to present yourself to the jury, and to establish the kind of credibility that will persuade jurors to trust the testimony, documents, and other evidence that you eventually will submit for their consideration. A superb opening can set you on a path toward winning the case, but a disastrous opening may be difficult to overcome. Thus, the content and the presentation of your opening statement must be developed with care.

How to convince a jury to like your client?

Use the opening as an opportunity to persuade the jury to like your client. Explain your client’s motivations, and give the jury reasons to feel camaraderie with your client. If you represent an individual plaintiff, convince the jury of your client’s integrity, and persuade them that your client is not just out to make an easy buck; rather, your client suffered real harm. Obviously, a lawyer representing an individual against a corporation may have an easier job personalizing the client, but a management-side lawyer can personalize their client as well, and the need to do so cannot be underestimated. For example, rather than focusing on the corporation itself, a management-side lawyer should tell the jury about the people who comprise the corporation – the relevant supervisors, the human resources representative, and/or the company’s owner. Familiarize the jury with these individuals’ names, and their roles in the drama, so that the jury will be considering the actions of people versus people in the case, rather than a single, sympathetic plaintiff against a huge, faceless corporation.

Do you waive the opening statement in a bench trial?

Lawyers often agree to waive the opening statement in bench trials, but waiving the opening generally is not a wise move. Just like jurors, a judge needs an overview of the case before the evidence is presented, so that the evidence will have some context. Thus, unless the case has been assigned to the same judge for a long time, and you are certain the judge (and the judge’s clerk) knows your case extremely well, do not waive the opening – just make it shorter and less dramatic. Also, feel free to address more law during your opening in a bench trial. Clarify for the judge what legal questions will govern the case, and what standards the judge will need to apply.

What is the opening statement of an attorney?

The opening statement is the opportunity for the attorney to tell the jury what the cause of action is about, what evidence the jury will hear, and the attorney’s client’s side of the story. In an ideal opening statement, the attorney will paint a picture of the case for the jury so that when the jury hears the evidence, ...

How long does an opening statement take?

Thank you very much. Most opening statements take between 10 and 45 minutes, although, depending on the complexity of the case, some may take longer. Some jurisdictions have developed rules for how long opening statements, as well as closing statements, may be. Other jurisdictions leave such time limitations to the judge’s discretion.

What is shifting burden of proof?

In the above example, the statute provides an example of a “shifting” burden of proof. The statute initially placed the burden of proof on Carl, the plaintiff. Carl must establish that his injuries resulted from an altercation with Mark. If Carl adequately presents evidence supporting his claim, then the burden shifts to Mark to demonstrate that even though he did cause the injuries, he has an applicable defense that is recognized under the statute. Therefore, if Mark can present evidence that he was not the aggressor but was merely trying to protect himself, then he can escape from liability. The burden to prove this fact would fall on Mark. If Mark cannot prove that Carl was the aggressor and Carl cannot prove that he was not the aggressor, Carl would win the case because Mark will have failed to satisfy his burden of proof. See U.S. ex rel. Southern Ute Indian Tribe v. Hess, 348 F.3d 1237 (10th Cir. 2003).

What is the burden of proof for a party to obtain a favorable judgment?

In order for a party to carry its burden of proof and obtain a favorable judgment, the party must provide some evidence that establishes all elements of the cause of action. For example: Marla was suing Toby for breach of contract under the laws of the state of Texarkana.

What does the judge do during a deliberation?

During the deliberation, the judge or jury will consider the evidence presented by the plaintiff and by the defendant. It is also during this time that the judge or jury will determine whether the plaintiff (or defendant) has satisfied its burden of proof.

What is the burden of proof?

The burden of proof is the “burden” or requirement, placed on a party to show that the factual evidence presented at trial supports an award of a judgment by the court or jury. The burden of proof is generally placed on the plaintiff since the plaintiff is the party bringing the lawsuit and demanding some type of legal or monetary relief.

Why are opening statements important?

Opening statements are important because studies have shown that trials are sometimes won and lost just through the opening statement. Studies have revealed that often, jurors make up their minds based on the opening statements.

How to write an opening statement for a case?

To write an opening statement, start with your introductory remarks that summarize the case, state your theme, and intrigue the jurors. Then, go on to introduce your client, as well as any other witnesses involved in the case.

What is the opening statement of a trial?

An opening statement is the most important points in a trial and it provides an attorney with an opportunity to engage with the jury about their case. An opening statement should always include an introduction; a body, which includes a story and a discussion of disputes and weaknesses; and a conclusion. Steps.

How to start a jury trial?

Begin with remarks that summarize the case, state your theme, and arouse the interest of the jurors. The first couple of minutes during your opening statement is when all the jurors are likely paying the most attention, so you want to capture them immediately.

What is the purpose of opening statement?

An opening statement is meant to help jurors comprehend the case, focus on important evidence, and provide context. Before writing your opening statement, you are going to want to grasp why the opening statement is so important.

How to prepare for trial?

Prepare your speech for the day of the trial. You should strive to deliver your opening statement from memorization. Doing so will make your opening statement more genuine, believable, and effective. In order to accomplish this, you should:

Should you argue during your opening statement?

Avoid arguing during your opening statement. Because the point of your opening statement is to introduce the jury to your case, you do not want to turn your opening statement into a series of legal arguments. So long as you are assisting the jury in understanding your evidence, your comments should be permissible.

Should you discuss the law in detail during your opening statement?

Avoid discussing the law in detail during your opening statement. Your opening statement can most likely have a brief introduction to the legal issues on which your case depends. However, you should avoid discussing how the law should be interpreted, and you should avoid applying any of the facts of your case to the law.

Why is opening statement important in trial?

Since opening statement is one of the most important parts of the trial it is a perfect place to put your effort into.

What does the opening statement tell the jury?

Or how the other side will not be able to prove what it claims. Opening statement is not the time for this. Opening statement is the time to give the jury your story. Opening statement is the time to convince the jury ...

What happens if you ignore the bad facts in your opening statement?

If you ignore the bad facts the jurors will feel that you are trying to deceive them when the bad facts come out. And trust me–they will come out.

How does the bad facts affect your case?

Not only will the bad facts affect your case but the credibility hit that you will take in front of the jury will further amplify the damage that the bad facts will do to your case. Instead of ignoring the bad facts you can do one of two things to deal with them.

What is the opening statement?

Opening statement is the time to give the jury your story. Opening statement is the time to convince the jury that what you are saying is true. Do not waste this valuable time trying to convince the jury that the other side is not telling the truth.

What do lawyers tell the jury?

The first thing they tell the jury is that what the lawyer says is not evidence. As they put it “what I say is just what I believe the evidence will show.”. Let me break it down for you–the jury does not care what you think the evidence will show. The jury does not care what you think at all, in fact.

Does the jury care what you think?

The jury does not care what you think at all, in fact. The jury wants to know what the truth is. they want to know what happened. They want to know who is in the right, and who is in the wrong. And you telling them that you’re about to tell them what you believe the evidence will be doesn’t help them one bit.

When questioning a witness about an exhibit, do you always refer to the exhibit number?

Remember, too, to always refer to the exhibit’s number when questioning a witness about it, or your record will be hopelessly unintelligible. If the court rules your document inadmissible. If the court sustains a hearsay objection, for example, first offer another exception as an alternative.

What step do you go to when you can't establish authenticity?

If you can not establish authenticity, proceed to Step 10.

Do you have to have a copy of an exhibit to testify?

If you need more testimony from the witness about the document or its contents, you can go on from there. The witness will need to have a copy of the exhibit from which to testify. But remember that if you take the original from the judge, the judge will not know what you are talking about.

Can you get a document in evidence if you are not a witness?

You may still be able to get the document into evidence through the testimony of another, later witness, but if you cannot, the document is in the record for appeal purposes; if you do not have it marked for identification purposes only, it will not be in the record for appeal.

Present The Theme of The Case

• Lawyers should have a one-sentence theme for their cases. Emotionally based themes often serve as anchors, creating impressions for the jury that linger until the time the verdict is decided. Themes keep the jury’s attention and help them organize information. Relying on a theme and hearing a story that incorporates the theme helps make the informa...

See more on americanbar.org

Tell A Story

Assemble The Facts Persuasively

Bad Facts

Make A Connection with The Jury—Do Not Read Your Opening

Conclusion

Opening Statement Checklist