How to make an opening statement
The opening statement is the opportunity for the attorney to tell the jury what the cause of action is about, what evidence the jury will hear, and the attorney’s client’s side of the story. In an ideal opening statement, the attorney will paint a picture of the case for the jury so that when the jury hears the evidence, it can place the various pieces of evidence in the relevant parts of the story.
The opening statement is not the appropriate place to argue – rather, it is a place to present the facts. The recitation of facts may be slanted in favor of one party, of course, but it must remain truthful. Although jurisdictions and judges vary in how much argument they will allow in an opening statement, most jurisdictions do not allow much argument or discussion of law during the opening statement. Here is an example of an opening statement:
Good afternoon, ladies and gentleman. My name is Larry Lawyer, and I am representing the plaintiff, Jessica Smith. We are here today to decide if the defendant, John Smythe, is liable for damages caused to Ms. Smith’s vehicle as a result of a car accident that took place on June 15, 2003. On that day, Ms. Smith was driving her car down Main Street when the defendant smashed his car into Ms. Smith’s car. We will provide police reports that show that Mr. Smythe was driving without a valid driver’s license, and that he was intoxicated at the time of the accident. In addition, we will provide the compelling eyewitness testimony of Ms. Sarah Crown, who saw the defendant’s car run through a red light and strike Ms. Smith’s car. Ladies and gentleman of the jury, Ms. Smith is a hardworking, honest, and law abiding citizen. At the conclusion of this trial, it is my hope that in the interests of justice you will find that the defendant is responsible for causing Ms. Smith’s injuries and find in her favor. Thank you very much.
Most opening statements take between 10 and 45 minutes, although, depending on the complexity of the case, some may take longer. Some jurisdictions have developed rules for how long opening statements, as well as closing statements, may be. Other jurisdictions leave such time limitations to the judge’s discretion.
Opening statements are important because studies have shown that trials are sometimes won and lost just through the opening statement. Studies have revealed that often, jurors make up their minds based on the opening statements. They may consider the evidence, but the impressions the jurors form during the opening statements often greatly affect their final decision.
Burden of Proof
The burden of proof is the “burden” or requirement, placed on a party to show that the factual evidence presented at trial supports an award of a judgment by the court or jury. The burden of proof is generally placed on the plaintiff since the plaintiff is the party bringing the lawsuit and demanding some type of legal or monetary relief. The party seeking relief must provide some information during the trial in the form of witness testimony, documentation, written statements or physical evidence, that supports its demand for relief.
Each cause of action is composed of multiple parts or “elements”. In order for a party to carry its burden of proof and obtain a favorable judgment, the party must provide some evidence that establishes all elements of the cause of action. For example:
Marla was suing Toby for breach of contract under the laws of the state of Texarkana. Contract laws in that jurisdiction establish that the plaintiff has the burden of proving that there was an offer to enter into a contractual agreement, that the parties understood the nature
of the agreement and accepted the terms of the agreement, and that the parties signed a written and legally binding document to establish that a contract was formed. During trial, Marla’s attorney provided documentation of the negotiations, the testimony of Marla’s secretary who witnessed the negotiations, and the original written and signed contract.
In the above example, Marla’s attorney attempted to satisfy the burden of proof established under Texarkana contract law by providing factual information of the three elements that support the creation of a contract. If the judge or jury finds that Marla’s attorney presented sufficient evidence to support each element (an offer, acceptance, and a signed legal instrument), then Marla would have satisfied her burden to prove that a contract was formed. Marla then may proceed to present additional evidence that Toby had breached the contract by failing to abide by the terms of the contract. A party who successfully "carries" his or her burden of proof must provide the presiding judge or jury with sufficient evidence under the applicable law to support its claim. If the statute places the burden of proof on the plaintiff, and the plaintiff fails to carry its burden, then the judge must dismiss the plaintiff’s case for failure to adequately establish and support its claim.
See Hildebrandt v. Illinois Dept. of Natural Resources, 347 F.3d 1014, 1029 (7th Cir. 2003).
However, the burden of proof does not always fall on the plaintiff. Statutes sometimes require that the defendant carry the burden of proof in some instances to establish certain issues. Alternatively, a statute may place the burden of proof initially on the plaintiff to prove certain elements and then “shift” the burden of proof to the defendant to prove the existence of other elements. Examples of elements that the defendant must prove are affirmative defenses such as incapacity, coercion and fraud. For example:
Carl sued Mark under the tort laws of the state of Texarkana for emotional and physical injuries suffered as a result of a bar room fight. Under the laws of Texarkana, a party may recover monetary damages from a physical altercation if they can demonstrate that the injuries were caused by the defendant. The statute, however, provides a defense. If a defendant can demonstrate that the plaintiff was the aggressor and the defendant acted in self defense, then the plaintiff is barred from recovering any monetary damages.
In the above example, the statute provides an example of a “shifting” burden of proof. The statute initially placed the burden of proof on Carl, the plaintiff. Carl must establish that his injuries resulted from an altercation with Mark. If Carl adequately presents evidence supporting his claim, then the burden shifts to Mark to demonstrate that even though he did cause the injuries, he has an applicable defense that is recognized under the statute. Therefore, if Mark can present evidence that he was not the aggressor but was merely trying to protect himself, then he can escape from liability. The burden to prove this fact would fall on Mark. If Mark cannot prove that Carl was the aggressor and Carl cannot prove that he was not the aggressor, Carl would win the case because Mark will have failed to satisfy his burden of proof. See U.S. ex rel. Southern Ute Indian Tribe v. Hess, 348 F.3d 1237 (10th Cir. 2003).
At the conclusion of the trial, the trier of fact (judge, in a non-jury trial, or the jury in a jury trial) will deliberate. During the deliberation, the judge or jury will consider the evidence presented by the plaintiff and by the defendant. It is also during this time that the judge or jury will determine whether the plaintiff (or defendant) has satisfied its burden of proof.Source: nationalparalegal.edu