The Conventional Wisdom is Wrong about Opening Statements

An opening statement is a speech by a lawyer given at the start of the trial that explains to the jury what the evidence will prove. Too often, lawyers throw this presentation together at the last minute and hope that by the time closing arguments arrive, they will have a more organized speech. The unprepared lawyer is comforted by the conventional wisdom that states that you should save your best ideas for closing argument anyway. This “wisdom” is based on the belief that jurors will followed the court’s instruction given at the trial’s outset to keep an open mind until all the evidence is presented. If no one is jumping to conclusions, the lawyer believes he can wait until closing argument to comfortably summarize for the jury what has occurred at trial.
The reality is that nothing could be further from the truth. A widely cited study found that 80 percent of jurors come to a decision about the case immediately during or immediately after opening statements. Human nature confirms this fact. We make quick judgments about who is right or wrong in our every day life. It is impossible to turn this decision making process off just because a judge tells us to.
Law schools also teach that you need to pepper your opening statement with the phrase, “The evidence will show” in order to comply with the assumed prohibition of making arguments in opening statements. The flawed logic is that by repeating the phrase you will only lay out the facts and not venture into the prohibited waters of arguing what the facts will prove. Again, this advice is completely wrong.
Great lawyers use the opening statement to powerfully argue their case to the jury. To see examples of such powerful openings, check out my latest book, Turning Points at Trial: Great Lawyers Share Secrets, Strategies and Skills, which can be found at Amazon.com.