Many states permit the lawyers to make a brief opening statement before the oral questioning of prospective jurors (e.g., California Code of Civil Procedure, sec. 222.5). If your state permits this, you should absolutely do it. Some judges are more supportive of this than others, but if the rules permit it, then do not shy away because of your judge’s possible lack of enthusiasm. As yet, more than a few judges have little or no experience with the mini-opening statement.
The benefits of the mini-opening are tremendous in all cases, either side. Counsel can lay out the issues of the case in a coherent story, and not have to chop up the issues into little bits and sneak them into a dozen questions. More importantly, mini-openings increase the quality of the information your later questions will elicit because the venirepersons will be answering in the context of your case; their answers will be more relevant and useful to you because they understand the basic issues in the case.
Imagine it. Without giving a mini-opening, you ask:
“When might it make sense to you that a doctor would go against something that a group of doctors suggest in an article?”
After a question this abstract, prepare for a fair amount of silence as laypeople struggle to relate the question to something relevant to them or their experience.
Now imagine the same question after the prospective jurors have been given a brief outline of the case from both sides. This time, the laypeople will have a reason to understand the question and their answers will home right in on what you really wanted to know about in the first place.
Juror 1: “Well, I guess if the doctor really is an expert in obstetrics and knows something special about this patient’s situation, then maybe. But I would have to hear more about that.”
Juror 2: “You say, ‘article,’ but it sounds like more than that—the American College of . . . what was it? It sounded from the other lawyer like that is pretty close to gospel, so if the doctor didn’t follow it, then . . . boy, I don’t know.”
You get the idea. Your questions get them talking about your case – specifically. Not abstract ideas. You get a better read.
But There Is A Big Challenge For The Type of People Who Become Courtroom Lawyers
HOWEVER . . . there is a diabolical mental/emotional trap that counsel must avoid with the mini-opening: Giving in to your natural litigator instincts to go full out, win every argument, try to be too emphatic and persuasive. That would be a mistake in the mini-opening before oral questioning of prospective jurors. Here’s why.
It has to do with when it happens in the sequence of your trial, before voir dire. Remember that the purpose of voir dire is to pull out unfavorable information from jurors, their attitudes and experiences that would be bad for your side. Yet, if you go in trying to win your case in the mini-opening, that has the effect of making jurors less likely to reveal their views that are contrary to yours in a few minutes when the questioning begins.
But hey. Dogs gotta bark, bears gotta bare, and bees gotta be. Litigators are who they are—so there is a certain amount of your inherent nature you’re going to have to be conscious of and perhaps control. Litigators want to win every argument and shift directly from neutral to fifth gear when given a platform for persuasion. If you don’t have a lower gear, develop one.
The tone in a mini-opening must be matter-of-fact, calm, informative, not argumentative nor intense. We do not want to arouse anyone’s psychological resistance by pushing too hard too soon. It is also good to keep in mind that at this pre-questioning moment, we have built up literally no reservoir of good faith nor trustworthiness. Yet. Ideally, we will build some of that during voir dire, but that hasn’t happened yet.
Moral of the story: Counsel simply must have the discipline to give a short speech that doesn’t push too hard. And you have my sympathies: that’s a tough calibration sometimes.
How To Do It: Goldilocks Returns
Your mini-opening must hit the Goldilocks Standard: it can’t be too minimal or devoid of all feelings or themes or other hooks for jurors’ visceral attachment, yet it should not be too strong in its apparent advocacy, either. (True also of your real opening statement.) It has to be, in the immortal yet vague words of literature’s most beloved breaking-and-entering offender, “just right.”
So let’s dispel at least some of that vagueness.
- Keep it to five minutes. That is plenty of time to lay out the issues you want to keep in the spotlight for the whole trial, yet short enough to keep you out of trouble. We are just trying to draw the prospective jurors’ attention to the key moments and relevant standards in your story so that when they talk about what is acceptable or forgivable – or not – their answers will relate directly to your story without need for interpretation.
- FEW unnecessary adjectives and zero adverbs. This concrete step alone will drastically reduce the sensation of being pitched. Every adjective or adverb is an argument. I don’t mean that in the legal rule sense that “openings can’t be argumentative” (of course they are), but rather in the practical psychological and linguistic sense: when using modifiers, the speaker is inherently asking the listener to adopt the speaker’s worldview. Assertion invites resistance, at least until people trust you and have granted some psychological permission to pitch them. So banish “recklessly,” “dangerously,” “flagrantly,” “deliberately,” from the plaintiff’s mini-opening, and “safely,” “reasonably,” “meticulously,” “carefully,” and “correctly” from the defense’s.
By the way. . . good advice for the real opening statement, too.
- Clear visuals, though no more than three or four. A carefully chosen set that helps lay out the facts and the standards your case relies upon. Avoid anything too gruesome, and anything too dense with text (in fact, at no point in the trial should you have any visuals that are too dense with text). Make your choices through the lens of Identifying the Issues & Standards Clearly But Not Too Strenuously.
- PRACTICE IT. This isn’t just a summary of the opening you’ve been working on—it’s a different piece and a different performance. It’s got a different purpose. The real opening statement is for setting the filters in jurors’ minds through which they will then hear everything in the case. The mini-opening, in contrast, is for giving just enough background so that your eventual voir dire questions will make more sense in context and thus their answers will be more valuable. It’s a different thing and thus requires its own practice.
And not for nothing, but this will be their first exposure to you for any length of time beyond saying “good morning” when the judge introduced the parties to the whole panel. First impressions are pretty important. Practice it.
If you haven’t already embraced the mini-opening, I strongly suggest doing so. You’ll immediately appreciate the higher quality conversation with prospective jurors it enables.