Don't Make These Opening Statement Mistakes
The opening statement is one of the most pivotal moments in a trial. It sets the tone, frames the narrative, and provides jurors with a lens to evaluate the evidence. Yet, many attorneys make critical mistakes during this phase, which can weaken their case before it even begins.
Common errors—such as failing to clearly outline the case theory or overloading jurors with unnecessary details—can lead to confusion and missed opportunities for persuasion. An effective opening statement requires precision, clarity, and strategic foresight to guide the jury toward a favorable understanding of the facts.
What is the best technique for a powerful opening statement?
Give the jurors a compelling story that captures their attention in the first three minutes – this is the secret weapon of opening statements. The number one technique for a powerful opening statement is to start with the strongest points – framing the key narrative – which triggers the primacy effect.
Here are the top mistakes to avoid during the opening statement:
1. Don’t Fail to Leverage the Primacy Effect
Jurors value the information they hear first more than what comes later. This phenomenon is known as the primacy effect. As a general rule, the first three points an attorney makes tend to carry more weight and significance than the next three.
Many attorneys waste the golden window of their opening statement by starting with introductions, expressions of gratitude, or abstract discussions about the legal system. The approach focused on opening formalities dilutes the impact of the attorney’s opening statement and squanders the jury’s most focused and receptive moment.
Jurors form their initial impressions quickly, and failing to capture their attention early on can lead to disengagement or even sympathy for the opposing side. Here’s what to avoid during your opening statement:
● Don’t introduce yourself to the jury.
● Avoid thanking the jury for their civic duty.
● Skip the corny stories or jokes to start.
● Don’t discuss the jurors’ role in the case.
● Keep your opening statement concise—don’t go on too long.
● Refrain from reading directly from a legal pad or tablet.
● Don’t take a defensive tone.
Instead, start with your strongest points. Frame the narrative through a compelling “cognitive lens” by highlighting alternative causation, identifying third-party liability or plaintiff culpability, and presenting a powerful, concise summary of your case theory.
For example, instead of introducing yourself or thanking the jury, you might say, “On June 1, 2024, the plaintiff ignored critical safety protocols. These led to the events in question. This case is not about bad luck but about bad choices.”
2. Don’t Defend, Attack
One of the most common opening statement mistakes is adopting a defensive posture from the outset. Defense attorneys often feel compelled to address every allegation immediately, emphasize their client’s virtues, or deny wrongdoing. This approach inadvertently reinforces the plaintiff’s narrative and makes the defense’s actions the focal point. Jurors are likely to perceive the defendant as defensive, and the plaintiff’s claims are validated.
Redirecting focus away from your client is a critical strategy in certain cases. To achieve this, consider the following approaches:
-Attribute the blame to an alternative factor, such as third-party negligence or unforeseeable circumstances beyond your client’s control.
-Challenge the plaintiff's claims directly by questioning the validity of their alleged damages or pointing out inconsistencies in their case.
Juries are naturally inclined to assign responsibility, so it’s essential to guide their attention elsewhere from the beginning. By employing these strategies effectively, you can help shift the narrative in your client’s favor.
3. Stop Overloading Jurors with Information
Don’t cram the opening statement with excessive details. While it’s tempting to outline every fact and piece of evidence, this approach overwhelms jurors and causes them to disengage. Jurors’ attention spans are limited, and too much information – especially in the middle of the opening – leads to cognitive overload.
Instead, focus on high-level themes and key points that align with your case theory. Leave the intricate details for witnesses and experts later in the trial. Aim for an opening statement that lasts 15 to 30 minutes – long enough to tell a compelling story but short enough to retain juror attention.
4. Ignoring the Power of Visual Aids
People are accustomed to consuming information visually. Not using visual aids during an opening statement is a missed opportunity to improve how jurors retain the information and engage with the content.
Without visuals, jurors are left to rely solely on auditory processing, which is less effective for memory retention. If opposing counsel uses visuals and the defense doesn’t, it creates an imbalance that can hurt the defense’s credibility.
Some simple yet impactful visual aids to incorporate include timelines to clarify the sequence of events, photos or diagrams of key locations, and charts to summarize data or damages. Static boards that remain visible throughout the opening are particularly effective, as they reinforce key points without overwhelming jurors.
5. Neglecting to Address Damages
If opposing counsel addresses damages in their opening statement, failing to respond immediately can significantly impact your case. The plaintiff’s proposed damages act as an anchor, shaping how jurors perceive the case's value. Without providing an alternative figure, the jury may accept the plaintiff's numbers without question.
Treating damages with the same level of significance as the plaintiff is crucial. In your opening statement, present a well-reasoned figure or a logical explanation to counter their proposed anchor. This strategy establishes a balanced framework for the jury, allowing them to evaluate damages more fairly throughout the trial.
6. Don’t Forget to Build a Connection
An attorney’s demeanor can significantly impact their credibility. Coming across as overly formal, combative, or insincere risks undermining trust and, consequently, the strength of your case. Jurors' impressions of you as an advocate directly influence how they perceive your arguments. If they find you unlikable or untrustworthy, they are less likely to support your client.
It’s important to acknowledge any challenges in your case when necessary, as transparency can build trust. However, always steer the focus back to the strength of your evidence and arguments.
To be effective, maintain a balance: be authentic, approachable, and professional. These qualities not only enhance your credibility but also ensure your case is presented in the best possible light.
Craft a Great Opening Statement With Courtroom Sciences
Avoid common opening statement mistakes to significantly improve the case's outcome. Psychological principles like the primacy effect and a focused narrative can engage jurors and set the foundation for a successful trial. Behavioral psychology-based strategies combined with clear and confident delivery help jurors stay focused on key points from start to finish.
Courtroom Sciences helps attorneys efficiently navigate litigation by providing psychological expertise, science-backed data, and expert support for all phases of litigation. Learn how CSI's litigation consulting experts can improve outcomes for your next case. Speak with one of our experts to get started.
Key Takeaways:
● Use the first three minutes of the opening statement to frame the narrative and present the strongest points.
● Do not waste the golden opportunity of the opening statement with introductions or pleasantries.
● A defensive approach reinforces the plaintiff's story. Instead, redirect attention to alternative causes, third-party negligence, or flaws in the plaintiff's case.
● Avoid overloading jurors with excessive details. Stick to high-level themes and keep the opening statement between 15-30 minutes.
● Incorporate timelines, charts, diagrams, and visual aids to improve memory retention for jurors. Static visuals left in view are particularly effective for reinforcing key points.
● Be authentic, professional, and approachable. Jurors' impressions of the attorney as an advocate directly influence how they perceive the case.