< Back
Opening and closing statements
It is our experience, and that of many leading attorneys, that the opening statement is the single most significant communication in a jury trial. Beyond providing a summary of the case to be presented on behalf of the client, i.e., what it is “about,” it creates an interpretive framework for the juror. During the testimony to follow, it is within this framework that the facts of the case are then fitted and their relevance, and even their meaning, understood.
Ideally, an opening statement creates a meaningful and memorable narrative or story that gives jurors a commonsense appreciation of the facts they are about to hear, and why those facts matter, both in terms of the contentions of one’s client and the relevant issues of law. In other words, the opening statement should allow the juror to understand the facts and events at issue as a human drama in which rational, albeit not always wise, individuals acted the way they did for motives, good or bad, which make sense in terms of the lay persons “intuitive psychology.”
Metaphors and analogies that highlight the relevance of facts consistent with a particular dynamic interpretation of a case, and diminish attention to facts inconsistent with that interpretation, are often best introduced during opening statements. These devices can then be alluded to in many subtle ways in the examination of witnesses and exhibits, and made explicit again during closing statement. Here too, especially with inexperienced jurors, it is important not to burden memory or sew confusion. The opening statement should give jurors the clear sense that your side is the one that wants them to appreciate the matters under dispute in terms they can understand, and that your side is confident that the better they understand the case the more reasonable it will be for them to render a favorable verdict.
From the outset, we encourage clients to spend a good deal of time exploring and refining the opening statement. Indeed, such preparation can play an important role in focusing the attorneys’ own view of the case and the persuasion task ahead. Trial Analysis Group brings a deep knowledge of the psychology of comprehension, learning, attention, and motivation to that task.
Whereas opening statement sets the stage for understanding and persuasion, closing statement provides a final opportunity to win the day. The attorney now is free to summarize arguments and rebuttals as well as facts, to persuade jurors on the fence and, perhaps even more importantly, to give jurors favorable to one’s side the ammunition they will need to persuade a minority, or hold firm and ideally win over a majority of those favoring the other side. Ideally, opening and closing statements will mesh, the closing reminding the juror of the interpretative framework that was introduced in opening, and reinforced in testimony and cross-examination. Inevitably, however, a trial unfolds in some ways that one had not anticipated; the other side has won its share of damaging admissions, or scored points with the introduction of fact or arguments that now need either to be rebutted or made to seem inconsequential in the larger scheme of things. Once again Trial Analysis expertise can be brought to bear in this effort.