What are “opening statements”?

In a civil or criminal trial, each party gets  a chance to make an opening statement.  This statement comes at the beginning of each party’s presentation of its case.  Its purpose is to outline that party’s case for the jurors and to explain what the party plans to prove with the evidence it is going to present.

In most civil cases, the plaintiff or the plaintiff’s attorney makes the first opening statement.  This statement happens after any preliminary instructions are read to the jury, but before any testimony has been given by witnesses. The opening statement is usually the first chance a party or his attorney has to speak to the jury, other than any questions the party or attorney asked during voir dire.

Opening statements are meant to provide a “road map” for the jury by creating a brief outline of the case.  This “road map” is often necessary because, in theory, jurors don’t know anything about the case at all when they are first seated.  If jurors do have some background in the facts of the case or a similar case, they are usually given a preliminary instruction to set their own knowledge aside and consider the case based only on the evidence they hear in the courtroom.

Because opening statements are supposed to be an outline or “road map,” the party or attorney who gives one is expected to stick to the facts.  The facts the party or attorney chooses to mention or chooses to leave out may be very different, depending on whether the plaintiff or defendant is speaking, but the opening statement must not, as a rule, turn into an argument.

For instance, an opening statement may contain the phrase “on May 12, the defendant ran a red light downtown, hitting the plaintiff and leaving her paralyzed,” but it may not contain the phrase “the defendant is a menace to society and you should not hesitate to give the plaintiff every dime she rightly deserves.”  The first statement states facts; the second one is an opinion.  If a party inserts too many opinions or arguments into his opening statement, the opposing party might raise an objection that the opening statement is too argumentative.  (Parties are, however, allowed to be argumentative in their closing statements.)

Once the plaintiff has finished making her opening statement, most courts allow the defendant a choice: would he prefer to make his opening statement right after the plaintiff’s statement, or after the plaintiff has rested her case?  Either choice has advantages and disadvantages, and attorneys will usually choose based on their strategy for handling that particular case.

If the defendant decides to give his opening statement immediately, he or his attorney will stand after the plaintiff has finished and give his opening statement to the jury.  If the defendant chooses to give his opening statement later, he will give it after the plaintiff has presented all the evidence she wants to present.  Just like in the plaintiff’s case, the defendant’s opening statement must be basically factual, leaving out arguments.

Opening statements can provide jurors with help understanding the context of the case, but they are not evidence.  Preliminary instructions will usually include an explanation to jurors that they are not to base their decisions on what they hear the attorneys say in their opening statements, but on what they hear the witnesses say while under oath and on the exhibits produced at trial.  Once opening statements are finished, the plaintiff usually begins his case by calling his first witness.

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