The opening statement in any trial can be the most difficult part of the trial for the defense attorney in any case. After all, we don’t known exactly what the witnesses will say and most of the time, we are not going to put on a case or we don’t know exactly what our case will look like. We don’t have the burden of proof so we don’t really have to do anything. I am not here to give a seminar on opening statements in general so I won’t. However, there are a few points the defense attorney should cover.
While the defense attorney doesn’t know what the testimony will bring, the basic defense should well known. In fact, a rough draft of the summation should already be drafted. Thus, the jury should be introduced to the defense via the theme of the case at least in general terms. The first sentence or two should be a hard hitting statement(s) that go to the heart of the defense. Don’t waste your time thanking the jury or telling some stupid story. Your job is to sell the case, not make friends. Use your best material in the beginning and end of your opening statement. Just Google primacy and recency to learn more about why this is important. The end of the opening statement should again tie up, in general terms, why the defendant is not guilty. Of course, we use the client’s name and never call him/her the defendant.
The middle of the opening statement could introduce the jury to a number of legal concepts such as what beyond a reasonable doubt means by going over some jury instructions and a descriptive analogy. I also like to tear apart the State’s opening statement by arguing that it is 90% fluff and that they buried the meat of the case in the middle. In a successful child pornography trial, I pointed out that it took the State 22 minutes to get to the fact that my client made a statement. Why did they wait so long? Because they wanted to bury it and that is their whole strategy, bury my client’s statement because it doesn’t help them. Instead, they want to distract the jury with all this other nonsense before and after the statement when in fact, the entire case (for both sides) rises or falls based upon the client’s statement.
Finally, the opening statement should never be waived! That is insane. Some lawyers actually do it though. If you are not sure about your style, hire a litigation consultant and give the opening statement to him/her. The consultant can not only critique the statement but your entire presentation style which may need to be tweaked. Unfortunately, I have seen too many lawyers do the same boring, passionless opening statement for 30 years that they don’t want to change. As a lawyer, you can never stop improving and you will never know it all; in fact, you probably won’t know half of what you need to know even after 50 years of practice so don’t hesitate to get suggestions every now and then.