Civil Litigation Criminal Law Legal Topics Litigation Strategy Pretrial Matters

Mini Opening for Voir Dire

jdopening_12384583As they say, never miss a chance to make a good first impression. If the judge permits it, take the opportunity to address prospective jurors before the oral questioning phase of the voir dire has begun. There are many advantages to the mini-opening statement and little downside. 

Mini-opening statements are short (usually 3 to 5 minutes) nonargumentative statements made by each party to the panel before voir dire commences. They give background information and describe the underlying dispute to the prospective jurors so that voir dire questions from the judge and the attorneys are presented in context.

The advantages to mini-opening statements at the start of voir dire are many:

  • They’re interesting. By contrast, the joint statements of the case that are traditionally read to jurors by the court tend to be dry, uninteresting, and sanitized to the point that the prospective jurors can’t discern the real dispute.
  • They elicit better and more revealing answers. Giving each side the opportunity to articulate a focused thumbnail sketch of the dispute results in better, more thoughtful, and more relevant answers. It also helps bring out answers that expose biases at a stage that facilitates either a challenge for cause or a peremptory challenge.
  • They engage the jury in the case. Prospective jurors become more engaged after they hear the “story” and are more likely to abandon efforts to find a way to avoid jury duty.
  • They eliminate the need for hypotheticals. Mini-opening statements eliminate the perceived need by attorneys to ask problematic “hypothetical” voir dire questions to assess prospective jurors’ reactions to the specifics of their case.

The disadvantages of mini-opening statements are generally the same as with regular opening statements, i.e., they can become argumentative. If you anticipate that the other side will abuse this procedure and use it to argue their side, address the issue in advance, e.g., by inquiring of the court before the mini-opening statements begin how it would like counsel to proceed. But don’t just give up the opportunity to address the prospective jurors; this is an advantage that you shouldn’t easily relinquish.

Timing is very important. Clarify with the judge when the the mini opening statements will be made. For example, many practitioners and judges have found that they’re most effective when delivered as one of the first presentations to the panel, after introductions by the judge. They’re best given before prospective jurors are told the time estimate for the trial; after time estimates are given, many will focus on reviewing their personal calendars and are often too distracted to take in information given while they’re worrying about accommodating the time commitment of a trial.

When handling a jury trial, you need to take every opportunity you can to reach the jury; despite their neutral nature, mini-opening statements give the jury its first glimpse of you and your case—take it and run with it!

This is just one of the many useful nuggets of information you’ll find in CEB’s California Trial Practice: Civil Procedure During Trial, a practice guide with everything you need to know about preparing for all aspects of a civil trial.

Related CEB blog posts:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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