It is only when the expected evidence is combined with a case theory that the opening statement becomes persuasive. So long as you avoid lapsing into argumentative form you may develop your theory of the case. While you may not urge the trier of fact to reach certain conclusions, you may arrange your discussion of the facts so that the conclusions are inevitable.
Many tools are available to accomplish this goal. In brief, a well-developed opening statement will take advantage of some or all of the following concepts:.
Choice of facts: In every opening statement you must decide which facts to include and which to leave out. While you will obviously want to emphasize the facts that you find helpful, there is also considerable risk to telling an incomplete or illogical story. Sequencing: The order of the facts may be as important as the nature of the facts. Clarity of description: It is one thing to mention a fact, but it is better to describe it with sufficient detail and clarity that you engage the finder of fact in your own mental portrait.
Common sense: Common sense is used both to judge and predict outcomes. An opening statement cannot be successful if its story does not resonate with everyday experience. Moral attraction An opening statement can be made more attractive when it tells a story that people want to accept.
In the final analysis, the most successful opening statements are those that explain exactly how you intend to win your case. The rules of evidence used in your mock trial govern what evidence is admitted at trial.
Since the admission of a piece of evidence is left to the discretion of the presiding judge, you may not know exactly what facts will come out at trial when you are preparing your opening statement. To complicate matters, opening statements are limited to admissible evidence. The best method, then, is to use only those facts for which you have a reasonable theory of admissibility.
In addition to limiting your opening to only the facts that you believe will be admissible at trial, there are other specific rules that set forth the manner in which you may present your opening statement. Once you understand these rules, you can begin to plan exactly what you will say.
Before we address these rules, however, we will briefly summarize the techniques you should follow when delivering your opening statement. First, if you have had weeks or even months to prepare for your mock trial, you should memorize your opening statement. When you have had less time, we recommend that you write out your opening statement and then divide it into sections.
At trial, you can use an outline that lists the sections or headings. By triggering your memory section by section, you can avoid reading your opening statement. Reading is your enemy during openings since it introduces you to the fact-finder as stilted, labored, or unprepared. Movement about the courtroom can also add considerable force to your opening statement; it can be usedto make the transition from one topic to another or to emphasize a particular point.
You should begin your opening statement standing directly in front of the fact-finder. Then, to signal transition, take a step or two to one side or the other whenever you change topics. By using your body in this manner you signal to the finder of fact that one subject has ended and another is about to begin.
The motion, in turn, will have the effect of reinitiating primacy. Most judges will allow you to move freely about the courtroom during opening statements.
Even so, you might encounter a judge who prefers that you argue your case from the podium or behind counsel table. If you are unsure about which policy the judge follows, ask her before the trial begins. Do Not Argue. As we noted above, argument is improper during opening statements.
Defining argument. As with many other rules we have discussed, application of this rule will vary by competition and by presiding judge. To help you through the uncertainty involved in determining whether a statement is an argument, ask yourself the following questions:. Am I urging the fact-finder to draw inferences from the facts? To illustrate to the application of our test, consider the following portions of opening statements that are based on a personal injury case:.
Just before the accident the plaintiff was sitting in a bar. In less than an hour and a half he. He bought a round for the house and then he left. He left in his car. The accident occurred within the next twenty minutes. The plaintiff was obviously drunk. No person could drink four shots of Everclear in that. Only an alcoholic or a liar would claim to have been. The first examplepasses our test since the bartender will testify to the facts contained un the first three sentences and the police will verify the remainder of the information.
The second example is more problematic. Thus, the second example fails our test and is therefore improper. Other considerations. In addition to the words you speak, a variety of other considerations may lead a judge to conclude that your opening statement has crossed the line into argument.
A statement can be transformed into an argument simply by the way in which it is spoken, including the use of sarcasm, volume, or vocal caricature.
In addition, the use of rhetorical questions is inherently argumentative. Likewise, although an excellent persuasive device when used elsewhere in a trial, repetition an lead an opening statement into the forbidden territory of argument.
Even the most innocent of facts can become provocative when repeated as many as three times, each with greater emphasis. Do Not Comment on the Law. Closely related to the rule against argument is the general proscription against discussing the law at length during opening statements. Since it is virtually impossible for counsel to avoid some discussion of the law during any but the simplest opening statement, we recommend that you do so quickly and only to the extent necessary.
Remember when you do this, however, that it is never acceptable to advocate that the fact-finder follow a particular interpretation or construction of the law.
Your most important task when giving an opening statement is to tell the fact-finder your theory and theme of the case. State your theory clearly. The most important rule concerning opening statements is to present a coherent theory of the case.
You will, of course, have developed such a theory in your pretrial preparation since no case can be won without one. The challenge now is to communicate it clearly, succinctly, and persuasively.
Recall that a trial theory is the adaptation of a factual story to the legal issues of the case. Your theory must contain a simple, logical, provable account of facts which, when viewed in light of the controlling law, will lead to the conclusion that your client should win. In short, you will want to use the opening statement to explain to the trier of fact why the verdict should be in your favor.
A successful theory will be built around a persuasive story. Ideally, such a story will be told about people who have reasons for the way they act; it will explain all of the known or undeniable facts; it will be told by credible witnesses; it will be supported by details; and it will accord with common sense.
Thus, your opening statement should, at some point and in some manner, address all of these statements:. What happened?
Describe the crucial events in your story. The crucial events are those that speak to the legal elements of your claim or defense. For instance, if your client is charged with murder and is claiming self-defense, you will want to describe those events that led your client to believe that his life was threatened by the deceased.
Why did it happen? It is not sufficient to list the facts. A story is most persuasive when it explains why events occurred as they did, since a compelling reason for an action will tend to rule out alternatives. For example, you may state that the defendant in a collision case was driving slowly and carefully just before the accident. Even so, your explanation will be more persuasive if it is supported by the fact that the defendant was returning from an antique auction, carrying an expensive and fragile chandelier in the back seat of her car.
Which witnesses should be believed? For example:. Two experts will testify as to the cause of the fire. The plaintiff will call Fire Chief Barry. Roberts, who will testify that he investigated the fire as part of his normal professional.
Chief Roberts concluded that the fire was accidental. He was not paid by either. He was simply doing his job. She does not work for the city or the state; she is a private investigator. All of her income. She was hired by the defendant to reach an opinion about. How can we be sure? As should be apparent from the example above, the persuasiveness of an opening statement, indeed the persuasiveness of virtually any aspect of a trial, is often established through the use of details.
Broad assertions can stake out territory and raise issues, but the truth will be determined by the details. An essential element of an opening statement, then, is the judicious use of details in support of the accuracy, dependability, or believability of your facts. Does it all make sense? Finally, the theory you present in opening, or at any other point in the trial, much make sense when it is measured against the everyday experiences of the fact-finder.
The provisions of reasons, biases, or details, no matter how compelling they are to your way of thinking, will accomplish nothing if the judge or jury cannot place them into a context that they understand and accept. Introduce your theme. Your trial theme, as distinct from your theory, should be expressed in a single sentence that captures the moral force of your case.
A theme communicates to the finder of fact the reason that your client deserves to win. Nonetheless, using a theme in your opening statement presents some difficulty. Unlike a trial theory, a theme is intended to reflect upon or interpret the evidence rather than simply to describe or outline it. Overuse or constant repetition of your theme may bring you perilously close to argument. Most judges, however, will allow the statement of a theme at both the beginning and end of an opening statement, especially when it is phrased in terms of fact as opposed to opinion or characterization.
Ladies and gentlemen, this is a case about a driver who was too busy to be careful. On the morning of the accident he woke up late. He had to be at an important meeting. Order and Contrast the Facts Persuasively. While argument is prohibited during opening statements, persuasion is not. Indeed, persuasion is unavoidable. Few of the facts outlined in an opening statement will be neutral; most facts will be favorable to one side or the other.
So long as counsel refrains from suggesting conclusions to be drawn from the facts, she is free to arrange them in an order that maximizes their favorable impact. The persuasive ordering of facts can be accomplished either through incremental development or through contrast. Incremental development involves the successive ordering of a series of discrete facts, each building upon the last, until the desired conclusion becomes obvious.
Although the facts will be related, they need not be presented in chronological order. The following example demonstrates how the plaintiff might use incremental development in our fire truck case:. The defendant awoke at AM. He had an important meeting scheduled with a. The client had not yet decided whether.
The defendant showered, shaved, dressed, but he skipped breakfast. He went to his car,. All of this took approximately fifty minutes. He had thirty minutes left before the. Other facts, of course, could be added to show how seriously late the defendant was, and therefore how likely he was to drive carelessly or too fast. The point is that the individual events build upon each other to explain, without saying so, why the defendant would have been driving negligently.
Contrast is the juxtaposition of contradictory facts, most often used in an opening statement to demonstrate the implausibility of some aspect of the opposing case. The defendant in the fire engine case might use contrast this way:. The plaintiff in this case is seeking damages for pain and suffering and lost income.
She claims a permanent disability. You will see medical bills offered into evidence. December You will also see a receipt for the purchase of a new backpack and. She went to the doctor on. August 15, she bought her backpack on August 17, and she went camping at Eagle.
River Falls on August She returned to town on September 3. Her next visit to. A great deal of thought is required to plan an effective opening statement. How you write your opening statement depends on which side of the case you are writing it for. If you were assigned the role of attorney for the prosecution or plaintiff, you will be the first to deliver your opening statement, which means yours is the first side the jury will hear.
The purpose of your opening statement is to highlight the key facts of the case and circumstances surrounding it, summarize critical evidence and identify the request for relief that your client is seeking jail time for criminal cases or money for civil cases. Yours is the last thing the jury will hear before the questioning begins. A good opening statement is one in which you provide a complete and compelling narrative of events that supports the side you represent without going into too much detail or making specific arguments.
Strong opening statements make it easy for a jury to understand and remember by providing a roadmap of the case such as key facts you will try to prove and a summary of the witness testimony or other evidence that will help you prove those facts. Do write a compelling opening statement that clearly identifies the most important aspects of the case as it relates to your side.
Lay out how you expect the trial to proceed and how you expect witnesses to testify. Memorize your opening statement. So now that you have spoken, the jurors in the mock trial will at least be prepared to listen to both sides. You will lose points if you mention things in your opening statement if they are not later established by the testimony.
I have notice that I have had a lot more visitors to my mock trial blog lately. I have been doing jury trials for almost 17 years as both a prosecutor and criminal defense lawyer. I have also coached mock trial teams since about If you have any questions or suggestions post them in the comment section below.
Thanks for reading. See also our new post on How to Write Opening Statements. Posted in Uncategorized Tagged mock trial Comments. This information is really helpful. I am greatful that you have posted this. My school mock trial team is competing in the next few months. I would greatly appreciate if you would help us out and be our coach because the rules say we can have one Professional coach. You can help us out via phone email or even visit. Please let me know if you can do this via Email:elijah yahoo.
Sorry it took me a little bit to approve this comment. Thanks for visiting my blog. I sent you an email, and I would be glad to help. Thanks for your question Rucie. But I do think you want to let the judges know what your strong points are ahead of time, much like a jury trial. Thank you so much for the information! I realize this was written a while back, however, I was wondering if you could answer a couple of questions for me?
I just joined the mock trial team for the university of west florida and I finished my defense opening but I have a couple of questions if you have time? My student email is, tmk16 students. Hi Tristen. I just emailed you my cell. Just text me when you have some time. I have heard West Florida has really been kicking ass lately in the Mock Trial competitions. I am in a business law class nearing the end of my masters program…we are currently creating mock trials from contract law cases.
Hi Lynn. I am in a know-your-rights class, and we are designing a mock trial based on a breach of contract dispute to teach students. Do you still have any contract law mock trial materials? I would really appreciate any help you have! It would be cool if students posted some examples of opening statements in mock trials that they have done. I need help creating an opening statement for defending my self against a school board and senate.
This is more about mock trials then real cases. Good luck though, Michael. Thanks so much! We have a fake client who was legally drunk, but is accused for vehicular manslaughter and drunk driving because an accident occured.
The girl in the front passenger seat was killed. Our client and another passenger in the back seat left the scene. We understand how to get our client off of the manslaughter charge, but how might we get him off of drunk driving as well? Sometimes defense lawyers will concede a lesser charge in order to maintain credibility on the greater charge.
But if you want to fight the DUI, you can challenge the accuracy of the alcohol test. For example, did the prosecution actually produce an expert to testify that the testing instrument was accurate? Is it possible that he seemed drunk simply because he had a concussion? Was the odor of alcohol due to alcohol being spilled on the defendant? Are you familiar with the National mock Trial Case?
Very similar to the Zimmerman case with the shooting of trey von…? M the defense attorney for a mock trial competition. I am thinking of hitting at the maintainability of the case. Hi defense attorney. I was wondering if I emailed you my opening statement for a mock trial for my civil litigation trial if you could give me some feed back?
Or e-mail me if you see this soon! Thanks: cwilson ivytech. Hi this helped a lot. I was wondering if you could help with the closing statement. This is the first time I have ever done this it would really help. Thanks for the help. Ahhh, thank you so much for posting this. I was having a really hard time trying to figure out how to start my opening statement. This really helped. I am one of two defense attorneys for a case of a German monk, Martin Luther, and I need to present an opening statement.
I am not sure how I should start though. Thank you in advance. Hi there. We have to do a mock trial against Main character Ponyboy Curtis. I am on the defending side. Thanks for your time. How can we prove that Hamlet is not guilty? I think murder is defined as an intentional killing. Killing someone who is behind a curtain is murder if the defendant knew someone was there. But if he was just thrashing about recklessly, then the offense would be manslaughter, which is defined as killing someone as a result of a reckless act.
Have you thought about maybe a defense of insanity or diminished capacity for you mock trial? Our mock trial case is a civil case over the death of a pet supposedly caused from the negligence of the pet manufacturer company.
The prosecution uses pathos often to sway the jury. How can I counter that? Can I skew the emotion towards our advantage. Can you help? It is hard too much without knowing the fact pattern, but I would try to emphasize how bad the manufacturer feels. Accidents happen, we all feel bad, we feel bad when any animal dies, when one is hit by a car, or dies of old age, or hurts its leg.
But that is the life cycle. The plaintiffs case is not so much about his love of his lost animal, his case is about his love of money, and no amount of money can bring the pet back. As to part two of your question, it is hard to say. The victim owned a restaurant with the defendant, and was a gambler. Contralto, a loan shark loaned the victim money and was trailing her trying to get the money back. The victim her name was Devin Frost was stealing money from the business that she owned with the defendant, and the business was about to go in red.
The defandant, otherwise known as Willy Freeman, was a cook at the restaurant. So it makes sense that his finger prints were on the cooler, the padlock. But not the kitchen knife. After the victim was pronounced dead, though its hard to tell exactly how long she was in the freezer, Willy found out about the buy-sell agreement, where if the victim died, the defendant would recieve , However, it could be premeditated and the best we could probably give is a sentence in manslaughter. If you could please give me some pointers by then, it would be greatly appreciated.
Thank you so much. This was really helpful. Thank you again, Lucy. I guess I would point out that it is a natural reaction for a person to become upset when they are a victim of a crime theft. Ask the jurors if you have ever had something stolen? Did that lead you to kill? Can you say the same about loan sharks? They are violent people, they are the ones who kill. Physical violence is the only collection method they have. It sound like the police is giving the real killer a free pass, because there was a rush to judgment, and they are unable to admit they made a mistake.
An enraged person would seek a more impulsive, immediate form of killing, such as a stabbing. Locking someone in a cooler is more an act of someone who is calm and calculating. So I guess I would kind of weave those themes in as well as any other additional themes you have.
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