Checklist of Pitfalls for Opening Statement
Don’t ruin your opening by stumbling into these pitfalls. Avoid:
Preramble: “My name is . . . and I represent;” “As His Honor has told you everything we say in opening statement is not evidence . . .;” “First, I want to thanks you for your jury service because. . .;” “I want to apologize for . . .”
“I believe . . .” Rule of Professional Responsibility 3.4(e)
“Mr. X will testify that . . . Ms. Y will testify that . . . Then, Mr. Z will testify that . . .” An endless list of witnesses and what they will testify to. Rather, tell the story of the case.
Past tense – “Jane saw.” Bring the story alive for the jurors with the present tense – “Jane sees.” Let them be eyewitnesses to what happened.
“This is a complex case.” “This case is simple.”
A podium unless the court requires otherwise. It’s conversational, not a lecture.
Losing eye contact. Reading.
A disconnect between the nature of the case and demeanor, such as anger in a forgery case.
Just saying it. Visuals will bring the opening to life – tell and show.
Trying to be someone you’re not.
Not revealing an admissible weakness in your case.
Mentioning inadmissible evidence (particularly if the judge has already excluded it as the prosecutor did in the Roger Clemens case) or evidence that may be excluded
Going on too long.
A case you don’t believe in – insincerity will show.
Overpromising what the evidence will show or overstating the case.
Misstating the evidence.
Too many details.
A weak beginning.
A weak conclusion.