Opening & Closing Statements: Ten Practical Tips from a Plaintiffs Lawyer’s Perspective

Ten Keys to a Good Opening Statement

Delivering a well-organized, pithy and persuasive opening statement can get a Judge or jury on your side early in a trial.   The opening statement is one of the most important parts of a trial.   As plaintiffs’ counsel you get the first opportunity to influence the jurors’ perception of what the case is about.   It is an opportunity to get the jury to identify with your client, define the defendant as a rule-breaker, introduce important case theories, highlight the important facts, inoculate against key defence arguments and get the jury to start feeling committed to righting a wrong.

The importance of the opening statement should not be underestimated.  It can start momentum in the trial that can be difficult for the defendant to overcome.   Conversely, making a mistake that leads to a judicial correction or misstating the evidence on an opening can kill your credibility and your case.

What follows are ten tips for delivering a good opening statement to a jury.

10. Don’t make it too long. Anything more than 40 minutes risks losing the jury.  If you take too long, a good defence lawyer will remind the jury that openings are not evidence and say that they don’t intend to waste the jury’s time by talking for a long time.   The inference is that you have just wasted their time.  If your opponent delivers a well-organized persuasive opening in 15 minutes after you have delivered a rambling one for more than an hour you haven’t gotten off to a good start in your trial.

9. Use simple language. Don’t use legalese or complicated words.   If a Grade 8 child can’t easily understand the language you are using then you need to simplify it.   Plus, using fancy language reinforces a belief that lawyers are fancy people who shouldn’t be trusted.

8. Don’t be afraid to review your numbers. It is important for the jury to know what you are claiming and why.   If you have reservations about telling the jury what you are claiming that is a sign that you may be over-reaching.  Your numbers should be supportable and should be introduced at the outset, with a justification, so there is no “number shock” later on in the case.

7. Know your themes and weave theme in. The opening is the first and best opportunity to get the jury thinking about your themes (e.g. This case is about a vulnerable child and the adults who failed to follow rules designed to keep children safe.)

6. Use some demonstrative evidence. Research has shown that people remember what they hear much better when visual displays accompany the spoken word.^[1]  A 40 minute opening that is interrupted occasionally to show the jury some key demonstrative evidence will keep a jury’s attention better than a 40 minute opening devoid of demonstrative evidence.

5. Acknowledge your weaknesses. You can start building credibility with a jury from day one by acknowledging the key weaknesses in your case and putting them into context. If your client is going to be found to be contributorily negligent, admit it in the opening.  Inoculate against key defence arguments.

4. Emphasize bad behaviour by the defendant. Jurors are more apt to want to punish defendants if they break the rules.   An opening is your opportunity to educate the jury on what they will learn about the rules and how the defendant broke them.

3. Tell the story of your client persuasively. The opening is your chance to get the jury to start identifying with your client.   Talking about the defendant’s actions and your client’s injuries isn’t enough.   You need to start humanizing your client by telling the jury about their before and after the injury with a few key stories (that will later come out in the evidence).    A story of your client overcoming something significant before the crash can humanize them.   A concrete story about how their impairments have impacted their ability to parent, for example, can create sympathy.

2. Know the difference between persuasive narrative and argument.   It is crucial that you do not make an overt argument or say anything that will lead to a correction by the Judge or a mistrial.  A correction by the Judge is a disastrous way to start a case.   Reviewing your draft opening against the law on permissible opening is crucial.

1. Don’t Say Anything You Can’t Prove. Your credibility is important to the case.   If you say something in your opening that isn’t ultimately supported by the evidence you have a problem.     Defence lawyers love it when plaintiffs’ lawyers over-sell in an opening statement.    Never mention the evidence of a witness you are on the fence about calling.   Whatever you say will be the evidence has to be the evidence.

[1] See Elliot Goldstein, Visual Evidence: A Practitioner’s Manual (Toronto: Carswell, 1991), at 1-2.

Ten Keys to a Good Closing Statement

As Roger Oatley said in his book Addressing the Jury, “no counsel, however skilled, will be able to turn around a troubled case with a brilliant closing.”   That sort of thing only happens in the movies.   But a good closing can impact the amount of damages that are awarded or how fault is apportioned.   You want to give the jurors who are on your side the tools to turn the others to your side.

Here are ten tips for a successful closing argument.

10. Start writing early. You can’t wait to start thinking about your closing argument until the last few days of a trial.   Sometimes the evidence will finish at 4:30 on a Thursday and you will be asked to close on a Friday.   You should be making notes throughout the trial (and even before the trial) that can then be refined into a closing argument during the trial.

9. Start strong and finish strong. Jurors are most likely to remember the things you say in the first few minutes and last few minutes of the closing.   Take advantage of that and make sure some of your best themes and arguments are in that precious time.

8. Finish the job of inoculating against defence arguments. By the time of the closing you will have, hopefully, done a good job of damaging the defence arguments with evidence and cross-examination.    You don’t want the focus of your opening to be all about the defence arguments but it is important to address them and quickly and briefly explain why the evidence eliminates them.

7. Make reasonable concessions and don’t over-reach. If the evidence has not gone your way on one of many issues don’t sink your credibility (and perhaps your case) by maintaining your position on that one issue.    Don’t be afraid to concede things.   You shouldn’t be leading evidence to support over-reaching claims but if, at the end of the trial, there is a concern about that then be reasonable in your submissions.

6. Take advantage of your opponent’s mistakes. Many lawyers don’t make reasonable concessions and hang on to positions that should be abandoned.  If your opponent does this take full advantage of it.   If your opponent says anything in his or her opening that isn’t supported by the evidence point it out.  Do it in a respectful way.

5. Use the jury questions. Many jurors are no doubt overwhelmed by their task.   But at the end of a trial they typically only need to answer 8-12 fairly straight forward questions.   Structure the opening so that each issue can be addressed in an orderly way with reference to the actual jury questions.

4. Use demonstrative evidence. In a recent trial I did the theme of the defence case was that my client was exaggerating his impairments.    Two pieces of demonstrative evidence (the damage to his vehicle and brain imaging) were key to rebutting this argument.   In the closing I said: “This isn’t a case where you have to rely on just the evidence of Adam and the people who know him to understand that his impairments are real and in no way exaggerated.   His impairments are the kind of impairments you’d expect from a crash like this (show the property damage).   And his impairments are exactly what you’d expect from the damage to his brain that we know is there (show the illustration of the brain bleed).”

3. Use questions. Using questions in a closing (rhetorical and otherwise) is persuasive.    They can used in all sorts of ways, like the following:

• Would someone without real issues try a medication that results in erectile dysfunction

• Would a man so passionate about his job give it up for no good reason?

• Is this suggestion by the defence realistic?

2. Know the evidence and use it. This may sound trite but it’s crucial.   And even some very experienced litigators make their arguments based on pre-conceived notions of what the evidence might have been rather than the actual evidence.   Use the words of the witnesses.   In a recent trial I did the defence expert commented on the situation the defendant driver put my client in.   He described it as “alarming”, “shocking”, “scary” and agreed that it was a “crap your pants moment” for my client.   These words became the theme of my arguments on contributory negligence.

1. Never misstate the evidence. Again, your credibility is crucial to the case.   Jurors know the evidence better than many of us give them credit for.   If you misstate evidence in a closing it will be held against you.