by Julie Brook, Esq., reprinted with permission from CEB.
July 17, 2020
There are many informal discovery techniques you can use to gather information without using the procedures described in California’s Civil Discovery Act (Code Civ. Proc., §§ 2016.010-2036.050). Most of these techniques can be easily adapted to use as we shelter in place.
Although the structure of an opening statement will depend on the particulars of the case, the jurors, and your individual style, there is a general outline that can help you start off with a clear, organized, and — most importantly — persuasive opening statement.
In general, your opening statement on the plaintiff’s behalf should consist of:
- An introduction during which, by way of language, demeanor, and gestures, you try to establish credibility with the jurors;
- A narrative account stating the facts and containing an implied argument; and
- A conclusion or summary.
Once you’ve put your factual story together, create a working outline as follows:
I. Brief Synopsis of the Case
Develop a short, penetrating one paragraph synopsis of what the case is about. The goal is to capture the jurors’ curiosity, so they’ll want to learn more about the case. For example: “My client Mr. King, is 57 years old. Every Monday morning, his wife of 35 years, Mary, bathes him, shaves him, dresses him, places him in his wheelchair and then drives him to work. It wasn’t always this way—but then—that is what this case is all about.”
- Express appreciation for service as jurors and explain the role as a juror in the adversary system.
- Introduce clients and identify all parties along with providing their pertinent background.
- Explain the purpose of the opening statement and describe the order of the trial:
- Opening statement provides a bird’s-eye view or road map of the case.
- Plaintiff has the burden of proof, and thus the privilege to address the jury first.
- Counsel’s statements of “what the evidence will show” is derived from depositions, interrogatories, and documents accumulated during discovery.
III. Statement of the Case
- Provide a brief background on the plaintiff.
- Describe the facts of the case and identify the cast of characters.
- Develop the facts of the case in conjunction with the elements necessary to establish each cause of action, i.e., duty, breach, causation, etc..
- Bring to jury’s attention and minimize any harmful evidence about your case, before defense counsel does.
- Explain to the jury any “terminology” that will be helpful to their understanding the mechanics of what occurred. This is especially important when there will be a great deal of reliance on expert testimony.
- Describe the effect of the defendant’s wrongful conduct on the plaintiff.
- Explain the concept of just compensation.
- Identify the component parts of what damages will be sought to make the plaintiff whole:
- Special damages.
- General damages.
- Punitive damages.
Reaffirm that plaintiff will satisfy the burden of proof on the issues of liability and those items of damage that are fair and just under the circumstances.
For more on creating a persuasive opening statement, including a sample personal injury case opening statement that illustrates this outline (which, although geared for a tort case, contains the essentials of almost all opening statements), go to Persuasive Opening Statements and Closing Arguments (Cal. CEB) chapter 2.