Overview
You are handling a piece of complex commercial litigation for a client. The stakes are high, and the case involves lots of documents and witnesses. The case has wound its way to trial, and the jury has been selected. It is time for opening statements, and the jurors now turn their attention to you. They all have the same question in mind: "What is this case about?"
Opening statements are a pivotal event in any trial of a commercial dispute. Depending on the jurisdiction or the judge, you may (or may not) have had the opportunity to address jurors in voir dire, but opening statements are your first opportunity to answer that unspoken question: What is this case really about? If you answer effectively, it will set your client up for success. If, however, you mishandle your opening statement—if you overreach or make promises about the evidence that you cannot back up—it is a sure-fire way to lose a case.
Trial practice, including opening statements, is an art and not a science – requiring judgment, experience, and skill. Ultimately, however, there are some rules of the road ("Do's and Don'ts") that, in our view, apply to almost any opening statement in a trial of a business dispute. We lay those out below.
Do: Start with a short, plain statement of the case.
Get to the point. Step to the podium, remind the jurors who you are and who you represent, and answer the jurors' question by concisely stating the crux of the case before displaying presentation slides, demonstratives, or pre-admitted evidence. Do this within the first few (3-5) minutes.
The key to starting like this is to work hard at filling in the following blanks: "This case is about ______," or "the evidence in this case will show_____." It doesn't really matter what the formulation is, as different lawyers will each have their own preferences. Instead, the point is to be able to answer those questions. This is not an easy task. Complex commercial litigation matters often involve thousands of documents and reams of deposition testimony, so how does one boil down a case of such magnitude and explain it succinctly to lay jurors? That is the essential work of the trial lawyer, and there is no getting around it. As Albert Einstein said, "if you can’t explain it simply enough, you don't understand it well enough." You need to be able to explain what your case is about to the jury in clear, plain English.
Starting succinctly grabs the jury's attention, shows the jury that you respect their time, and that you know the facts.
Don't: Waste time with a lot of initial chatter.
Conversely, do not spend several minutes introducing yourself and every member of your team. Do not go around thanking every single member of the courtroom staff. Jurors are likely to see this as pandering.
Similarly, while you should of course introduce your client representative, don’t spend several minutes praising your corporate client—e.g., by pointing out the number of people it employs in the local community or how many "good corporate citizen" awards it has won. As one author commented, "many jurors readily see through gratuitous praising of the virtues of the parties" as an attempt to "persuade them to decide the case on something other than the relevant issues and actions of the parties."1
Do: Tell a story that focuses on the key facts.
Your answer to the question: "What is this case about?" lays the foundation for the story that will drive the verdict in your client's favor. Demonstratives and pre-admitted evidence will illustrate that story.
Structure your narrative around the key facts, which the evidence will prove are true, and that compel the conclusion that your client wins. The number of "key facts" or "key points" doesn't matter. What matters is that these are the crucial facts that (you say), the evidence will indisputably show. Winnowing down and focusing on those crucial facts to structure your trial story is essential.
Those key facts should be listed in clear, simple language in one basic chart that acts as the "anchor" for the remainder of your demonstratives and pre-admitted evidence. Organizing your story in this way allows you to weave in evidence and preview witness testimony to explain each of the key facts in the case. It is a simple but powerful tool for jurors to start to organize the evidence in their minds early in the case.
This is true for many reasons, one of which is that opening statements and closing arguments go hand in glove. The former is a preview of the evidence; the latter a summary of the evidence that has now been admitted. Previewing the "key facts" in the opening statement therefore becomes the pivotal organizing structure for your closing argument. It is imperative to structure your trial story this way, as the repetition of those key facts in closing argument hammers home your narrative and establishes you and your client as the honest brokers in the courtroom.
Of course, you should know you can establish the "key facts" in the evidence when you preview them in your opening statement, which leads us to our next point.
Don't: Overpromise.
Don’t make promises in your opening statement unless you know for sure you can keep them in your closing argument.
This may seem obvious, but even in high-stakes commercial litigation, this error occurs quite frequently. Counsel will use a demonstrative, like a pie chart for example, that doesn’t quite match the numbers it purports to represent. It is skewed, not coincidentally, in their client's favor (yes, this really happens). Or opposing counsel will make statements about the evidence that they cannot back up when the evidence is in. Of course, in closing argument you should point out, forcefully and early, any such blunders from opposing counsel.
Overstatements and overpromises in openings are a serious credibility hit that can undermine your entire case. And yet it keeps happening. This is likely due to the truism that has been around the practice of law for several decades now: 80% of jurors make up their minds immediately after hearing opening statements. If that were true, it may explain why, even in complex commercial matters, trial counsel overstate the evidence in opening statements.
However, it turns out that this "truism" isn't true at all.2 For starters, when are jurors asked when they made up their minds? Usually, it's after they've heard all the evidence, deliberated, and rendered a verdict. Any such after-the-fact answer is biased and seems highly suspect at best. Moreover, the apparent source of the 80% figure are studies from 1959 and 1966.3 And many subsequent commentators took the statistics from those studies out of context, leading to the "80%" fallacy that persists to this day.4 In fact, one of the authors of those early studies, Hans Zeisel, wrote an article to "put an end" to the myth that 80% of jurors make up their minds after opening statements.5 According to Mr. Zeisel, he and his co-authors of the original studies "never made such a discovery; . . . never even asked the question."6 To the extent a trial victory is credited to an opening statement, Mr. Zeisel explained, it is, "the weight of the evidence, properly foreshadowed in the opening statement, that deserved the credit," and not the "forensic merits" of the opening statement itself.7
This is a crucial point to bear in mind; it is the evidence and the weight of that evidence that will win the day; not the opening statement, which is merely previewing that evidence. It is therefore critically important to be scrupulous about what you say the evidence will show. If you can’t prove it, don't say it. As to the evidence you can prove, don't overstate it.
Do: Keep it short.
Overload at the start of the case (or anytime in a trial) is a bad idea. Attention spans are short, and people are only able to take in so much information at one time. This is why it is imperative to focus on a succinct summary of the case and to tell a trial story that is structured around the key, case-dispositive facts. Focus on what matters and forget the rest.
The same goes for the time you allocate to your opening statement. Whether you are on a clock or not, keep it short. In a recent case tried by one of the authors of this article, opposing counsel wanted two hours for opening statements in a three-week trial. The judge's answer in so many words was, "Counsel, if you want to bore the jury right out of the gate, that is your prerogative." This is good advice. Obviously, the length of an opening statement is going to vary with the length and complexity of the case, but the point remains the same: focus on what matters and keep it short.
Don't: Get ahead of the judge or the evidence.
Do not argue your case in your opening statement and avoid theatrics.
Drawing an objection, or worse still, a sua sponte intervention from the judge ("Let's save this for closing argument counsel!"), is not a good look. The jurors will be left with the impression right out of the gate that you, a paid advocate, are already overreaching. Jurors are instinctively suspicious of anything a lawyer has to say about what the evidence will show. A good trial lawyer earns the jury’s trust over the course of the case by being scrupulous about the evidence.
As for the evidence, be certain you are authorized by the court to publish documents. The same goes for demonstratives. Most judges do not permit publication to a jury of an exhibit that is not already admitted in evidence and will require the parties to exchange opening statement demonstratives and documents in advance. Although the process of stipulating to the admissibility of evidence on the eve of trial often leads to gamesmanship and stand-offs, it is generally a good idea to stipulate to as much of the evidence as you can.
When dealing with deposition testimony, if the court has already ruled on deposition designations in advance, ask the court for permission to play video excerpts of that testimony in your opening statement. This adds color to the presentation of the evidence and makes it more interesting for the jury. But as with every other aspect of an opening statement, keep those excerpts short—you are simply giving the jury a preview.
Do: Wrap it up.
At the end of an opening statement, it is important to take a few moments to empower the jury and establish credibility.
The jury is the trier of fact, and in almost every case, will have been instructed on that point in advance of opening statements. Remind them of that instruction and point out that anything you have said is not evidence (another routine pre-instruction). It is for them to decide what the evidence will show; not you, not opposing counsel, not even the court.
Reminding the jury of these points is a very effective way of earning, or beginning to earn, their trust. Similarly, respectfully ask the jury to pay careful attention to opposing counsel's opening statement and to all of the evidence as it comes in.
Finally, it's important to explain to the jury that having previewed the evidence, you will be returning to that evidence at the close of trial, and that you will be asking them to return the only verdict that their assessment of the evidence will support—a verdict in your client's favor.
Conclusion
Business trial lawyers like to say that you can't win a case by giving a deposition, but you can lose it if it is handled incorrectly. The same is true for opening statements. A fair, accurate, and credible preview of the key evidence in the case is essential. And while every case will, of course, have unique facts, structuring an opening statement around a focused preview of those key facts is the secret sauce for an effective opening statement in a trial of a complex business dispute.
1 Gerald Reading Powell, Opening Statements: The Art of Storytelling, 31 Stetson L. Rev. 90, 94 (2001), available at: https://www2.stetson.edu/law-review/wp-content/uploads/2022/03/31.1.6.Powell.pdf.
2 Nick Polavin, Do Jurors Decide After Opening Statements?, USLAW MAGAZINE, (Summer 2020), at 24, available at: https://www.uslaw.org/wp-content/uploads/2022/01/Summer-2020-USLAW-MAGAZINE-low-res.pdf.
3 Id.
4 Id.
5 Hans Zeisel, A Jury Hoax: The Superpower of the Opening Statement, 14 Litigation 17 (1987), available at: https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=12000&context=journal_articles.
6 Id.
7 Id. at 17 (emphasis added).
