One of the most embarrassing and damaging things that can happen to plaintiff’s counsel during trial is a defendant’s successful motion for nonsuit after the plaintiff’s opening statement. Even though the plaintiff normally gets another chance, the experience is shattering. Make sure this doesn’t happen to you!
Here’s basic California law on motions for nonsuit (CCP §581c):
After the plaintiff has completed his or her opening statement or the presentation of his or her evidence in a trial by jury, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit.
Case law on nonsuits after an opening statement is plentiful, dating back to the turn of the century with little change since then. Nonsuit is warranted when, disregarding conflicting evidence and indulging in every legitimate inference from the plaintiff’s evidence, there’s just no substantial evidence to support a verdict for the plaintiff. Keller v Pacific Turf Club (1961) 192 CA2d 189, 13 CR 346.
Case law is also clear that the plaintiff should have an opportunity to “cure” the defect in the opening statement—basically, a re-do. This means that nonsuit at the end of the plaintiff’s opening statement is warranted only if from the facts and inferences from them, the court can conclude that as a matter of law there won’t be sufficient evidence to support a judgment for plaintiff.
Avoiding nonsuit after opening hinges on adequate planning. Some attorneys read the pleadings to the jury, which protects against nonsuit but also ensures either jury stupor or jury animosity. Here’s a better approach:
- Gather all the elements of proof. Go over the elements of proof required of your case, either taken from the complaint, the statement of affirmative defenses, or the instructions you’ve prepared.
- Chart the elements. Make a chart with one column for each element of proof and a separate column with the facts or evidence you intend to produce to establish each element.
- Mention each element. Make sure to mention each element, at least in passing. You don’t have to recite everything that’s in your chart as long as at least one fact is mentioned on each critical element.
If you do find yourself faced with a motion for nonsuit after opening, make sure that your opponent has clearly specified the element(s) that he or she claims are missing, and then request judicial leave to reopen your statement to make up the missing elements. Unless your case is fatally flawed as a matter of law, it would seem to constitute reversible error for the court to refuse this request.
Don’t let your opening statement mark the closing of your case. Even if you can fix things by reopening, you’ll have shaken your client’s confidence in you and made the jury think you’re inept, not to mention the undermining effect it will have on your self-confidence. To help you get your opening right the first time, turn to CEB’s Persuasive Opening Statements and Closing Arguments.
CEB also has a unique program with distinguished panelists discussing practical pointers for crafting and delivering your opening statement, Effective Approaches to Opening Statements & Closing Arguments, available On Demand.
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