How an opening statement can make or break a malpractice case


"An attorney who just reads off a script spewing random facts at the jury will likely cause the jurors to check out," writes Kenton H. Steele, Esq.

Kenton H. Steele, Esq

Kenton H. Steele, Esq

The third installment of our series on the anatomy of a jury trial focuses on the opening statement. The opening statement is arguably the most important part of a jury trial. It serves as the attorney’s first opportunity to present the facts of their case to the jury, personalize their client, and establish a theme of the case. When done effectively, an opening statement provides the jurors with a framework through which they will view the evidence in the case. It’s believed that more than 80% of jurors decide the case after hearing the opening statement. That is to say, the foundation an attorney sets in the opening statement often becomes the lens through which the jurors consume the testimony. If a juror has already decided they like one of the parties based on their attorney’s opening statement, it’s more likely that juror will find the party credible throughout the trial.

Typically, attorneys are not permitted to argue during opening statements. Instead, the opening statement provides an opportunity for attorneys to preview the anticipated evidence, testimony, and exhibits. Think of the opening statement as a road map, a guide to better help the jury understand where they are going to go and how they are going to get there.

But just reading a map isn’t very interesting. So how do lawyers set the framework? What makes an effective opening statement? Well, attorneys appeal to something that resonates with all of us—storytelling. At its core, an opening statement is a story. A story that establishes the characters (the parties and witnesses) and gives a synopsis of the plot (the facts of the case) before ultimately suggesting how the story should end (asking the jury to render a verdict in your favor).

An attorney who just reads off a script spewing random facts at the jury will likely cause the jurors to check out. Contrast that with the attorney who is off script, standing before the jury, passionately explaining the case, varying their tone and tempo, and using the physical space given to them to command the attention of the jurors. It is far more likely that this attorney will have the full attention of the jury. Seeing an attorney advocate for their position makes a juror want to believe it that much more. And even if the jury isn’t sold on the attorney’s position, they will remember the names of the witnesses and the major facts they will hear about later.

And that’s really the point of the opening statement: Take a trial that occurs over the course of a couple weeks and synthesize it into a digestible story. By the end of a medical malpractice trial, the jury has been exposed to days and days of testimony, hundreds of exhibits, and dozens of different witnesses, which will include experts explaining complicated medical concepts. Without opening statements, any witness called to the stand might seem like another in a never-ending list of witnesses. But if the attorney has explained in opening, “John Smith is the witness who will tell you what the plaintiff said in the days after the procedure”—and if the opening statement was engaging—the jury might remember, “Oh yeah, this is John Smith, the guy who knows what the plaintiff’s condition was after he left the hospital.” By setting this framework in the opening statement, the jury is already expecting Smith’s testimony, long before he ever takes the stand.

The attorney will reenforce the themes and narrative introduced in opening statements over and over throughout the course of the trial. One of the key methods of a party telling their story at trial is through the direct examination of their witnesses. In the next installment of this series, we will explore what makes an effective direct examination and the rules that apply to offering testimony at trial.

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