July 3, 2010
Coming from the Plaintiff’s perspective, your opening statement should focus on two things: (1) the defendant’s bad conduct and (2) the Plaintiff’s damages. The case is about what you talk about the most. Some time will have to be spent on liability. This can certainly be done by telling the story. The focus of your story should be on the defendant’s bad conduct. Tell the story from the defendant’s point of view, pointing out the various acts of negligence.
After you tell the story and establish the bad conduct of the defendant, then talk with the jury about the physical evidence at the scene of the wreck using pictures and video if possible. This will help them understand the mechanism of the injury. Then, walk the jury through your client’s damages letting them know which witnesses will be called to support each and every piece of your damages case.
1.Communicate Your Theme Effectively
Every case needs a theme and the theme may be as simple as: “Defendant was in a hurry and the Plaintiff can no longer walk” or “Defendant broke the law and Plaintiff suffered the consequences”. Every theme should incorporate the Defendant’s bad conduct and include the harm to the Plaintiff. Themes should be repeated throughout the trial and proven up with evidence.
Your theme must be firmly supported by the facts and evidence. Do not use a theme that stretches the truth. Your theme should be easy to understand and explain.
2.Evoke Emotion and Grab Their Attention
It is important to evoke emotion in the jurors and to grab and keep their attention. The very best lawyers are exceptionally good storytellers. Tell the story from the perspective of the Defendant in the present tense as if it was happening before the juror’s eyes. You should try and use pictures, diagrams and/or any other visual aids to help draw the jurors into the story. Describe the events using sensory words, like “the Plaintiff’s knee looked like a freshly packed pound and a half of ground beef from the grocery store” or “the Plaintiff felt as if his knee was being pulled out from under his skin”.
3.Lay Out the Rule and Evidence that Supports the Case
Plaintiff’s personal injury cases generally involve a rule that has been broken. It is important to discuss the Rule and the evidence that proves that it was broken. For example:
The Rule: The ADA requires that a hotel owner provide a built-in shower bench for handicapped individuals to use.
The Evidence: The owner of the subject hotel did not install a built-in shower bench for handicapped individuals. Although the hotel owner’s architectural plans included a built-in shower bench, the hotel owner did not follow the plans and decided against installing the bench.
The Rule should be discussed throughout the case and it is best if you can get the defendant to acknowledge the Rule and that it has been broken.
In sum, an opening statement should tell the story in a compelling manor identifying the theme of the case, which should incorporate the defendant’s bad conduct and the harms to the plaintiff. In addition, it is important to lay out the Rule that the defendant broke and summarize the evidence that will demonstrate why and how the violation of the Rule caused damage to the plaintiff. Like voir dire, the more passionate and sincere you are during your opening statement, the more likely the jurors will listen and remember what you have said.