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© 2003 American Bar Association http://www.bna.com/bnabooks/ababna/annual/2003/mcwilliams.doc
A contrary approach is to wait and see whether and how the information comes out
before giving it any attention. Jurors commonly do not expect lawyers to say anything negative
about their own witnesses, their evidence, or their case. Thus, by focusing on harmful
information, you may call greater attention to the damaging information than necessary. Also,
remember that once the opening statements have been delivered, the trial itself provides a chance
to respond to any charges that the other side makes.
Whether to introduce damaging information obviously is a matter of judgment, and the
decision will differ from case to case. A middle ground might include introducing harmful
information, but spending only a passing moment discussing it. Or, introduce all positive
information first, and only after such information has been laid out for the jury, address the
negative information and explain why it is not persuasive, thereby emphasizing its insignificance
to the case.
Importantly, defense counsel has the advantage of going second. If the jury did not learn
the harmful information during the plaintiff’s opening, then the need to deliver the information
during the defense’s opening is decreased. While the plaintiff may decide to introduce the
negative information into evidence later in the trial, consider the possibility that the plaintiff may
decide not to introduce the evidence at all; the court may decide not to admit it; or the evidence
may come in weakly, without the power you expected. Thus, it may be wiser for defense
counsel to avoid discussing any “bad facts” in the opening statement that plaintiff’s counsel has
not already raised.
Visual Aids
It has been said that a picture is worth 1,000 words. Thus, keep in mind that effective
opening statements need not be limited to words. The use of exhibits and visual aids can
enhance the value and effectiveness of counsel’s opening statement. (Just make sure that you
have followed your court’s rules on the subject, and have a “plan B” if the court decides not to
allow your visual aids.)
Remember, the purpose of the opening statement is to explain what the evidence will
show, and a good explanation may include some of the evidence itself. Lawyers generally are
allowed to read from, or display, documents and other exhibits that they expect to be admitted
into evidence. Less is more in this situation, however – counsel should include only two or three
of the most important exhibits, and not confuse or overwhelm the jury with too many details.
Use a
pointer so the jury can follow as you indicate
what the exhibit reflects. To the extent that the evidence includes important photographs, maps, and/or charts, use them. If your case hinges
on a performance review, a letter, or a contract provision, enlarge it and show it to the jurors.
Visual aids, which may summarize or analyze the evidence, such as charts, graphs, and
chronologies, also are tools that may enhance the opening statement, as they can help jurors
understand the eventual trial evidence. As long as the visual aids are not misleading or
argumentative, such as “Five reasons why the plaintiff should lose,” they should be acceptable
for use during the opening statement in most courts. Counsel should remember, however, to