Legal Topics Litigation Strategy Trial Strategy

Don’t Dodge—Defuse: Use Your Opening Statement to Handle Problem Areas

ThinkstockPhotos-140270511Almost every case has problems—sometimes they are analogous to bombs waiting to drop on your case. The key is whether you show them to the jury and simultaneously defuse them, or whether the opposition drops them with glee.

One of the hardest lessons for many attorneys is the importance of acknowledging weak spots in your case. These weak spots, if they’re known to the opposition, should generally be put right out there, in the best light possible of course, during your opening statement.

Here’s an example of how this works:

Assume that the plaintiff’s case is strong:

  • the plaintiff was crossing the street in a crosswalk and the light was green;
  • the defendant was driving a fuel tanker truck too fast on the way to filling up a gas station tank;
  • without slowing down, the defendant ran his red light and hit the plaintiff;
  • the plaintiff lived but was rendered a quadriplegic.

Plaintiff’s counsel recites all of these facts to the jury in the opening statement. At that point, the jury’s frame of mind is pro-plaintiff, as it awaits the defendant’s opening.

Then comes the bombshell: defense counsel tells the jury that the plaintiff was a stumbling, crashing, mumbling drunk, and it was only 10:30 in the morning! No wonder he got himself in an accident—he was weaving so badly he could hardly stay between the white lines of the crosswalk.

Plaintiff’s counsel could have avoided the sting of defense counsel’s argument by anticipating the issue. Plaintiff’s counsel could have explained that the plaintiff was under the influence, having just returned from an all-night wake for a beloved friend; that he was walking home so as to avoid the danger which would be presented should he drive; and that he was proceeding carefully in the confines of a crosswalk so that he could be sure he was safe.

Normally, the most devastating fact in your case can be better described by you in context than by your adversary in triumph.

Although you don’t want to dwell on weak spots in your case, at least don’t let the jury be taken by surprise by them.

Learn proven techniques for compelling and effective opening statements and closing arguments from trial veterans Joseph Cotchett and Nancy Fineman in CEB’s newly-updated Persuasive Opening Statements and Closing Arguments. Also check out CEB’s program Effective Opening Statements and Closing Arguments As Taught By California’s Top Trial Attorneys, available On Demand.

Other CEBblog™ posts on trial strategy:

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