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Anatomy of a Civil Trial

Opening Statements & Theming

Jeanne M. Ripley O

pening statement operates as both the introduction of the attorney and client to the Judge and jury as well as the introduction of the case. While many

attorneys operate on the assumption that their cases are won or lost on summation, studies of social behavior do not support that assumption. Jurors are never as attentive as they are during opening statements, and it is during this critical phase that they seek to form an immediate opinion as opposed to staying neutral. Most people have a tendency to size up a situation quickly and draw initial conclusions. Within a fairly short time frame beginning with voir dire and ending with opening statements, jurors evaluate what they think and feel about the attorney, the client and the case. Frequently the trial itself merely buttresses these initial opinions and the evidence presented is seen in a light to justify the position the juror has taken from the onset. Done well, opening statement shapes the way jurors receive the evidence and creates a lasting positive impression. Done poorly, opening statement can seriously handicap the case. Te jury’s interest level is at its peak as it is sworn in

and seated. Te jurors are curious and fresh and at their most receptive to considering the case. To capitalize on this relatively small window of opportunity, it is important to properly craft the opening statement. Every single case must have a theme that the attorney raises in voir dire, directs in opening statement, brings out in the presentation of evidence, and hammers home in closing argument. Every case turns on a few universal fundamental concepts. Identifying these concepts and making it into the case theme is the key to winning.

Choosing a Theme What is a theme? It is a short and simple concept that

sums up the case. It is the “road map” that the jury uses to organize and remember the facts in a way that brings them to reach a decision in the client’s favor. Deciding on the theme of the case should be done when the case is first taken by

counsel. Determining the theme to the case allows the attorney to make decisions as to the importance of different witnesses and evidence. It effectively allows the attorney to separate the “wheat from the chafe.” To find the theme to the case, consider what the case is all about. Why is it important? If counsel had to explain the case in thirty words or less to a non-lawyer, what would it be? Use the spouse test- how would counsel explain what the case was about to a husband or wife at dinner? If a child asked what the case was about, what would counsel tell him or her? If this case became a movie, what would be the trailer used? Te three basic requirements for a theme are that it be

easy to remember, favorable to the client, and most importantly consistent with universal concepts of fairness and what is right. Universal themes are those that are based on general human experiences, values and societal norms. It is important to choose a theme that explains the case and why the client should win and one that resonates with a jury by involving life’s values. People value such things as fairness, hard work, personal responsibility, good triumphing over evil, justice, etc. Some examples of themes would be “quality of life,” “improved safety,” “life, liberty and property,” “profits over safety,” or “with every job there is responsibility.”

Trial Reporter / Spring 2012 5

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