Opening statements - learning from the Plaintiff's bar
There are obvious differences between civil and criminal trials, but I am finding that criminal defense lawyers can learn a lot from the plaintiff’s bar and vice versa.
It is often said that jurors have made up their minds by the end of the opening statements – for this reason, we should never hold back important information during opening and we should never waive an opening statement. I don’t believe that jurors have made up their minds in the opening statements, but I do believe that they will have some firm opinions one way or the other that will be difficult to change.
Opening statements tell jurors what the trial will be about, and give them a framework that they will view the rest of the trial through. Whatever the lawyers spend the most time on in opening (and voir dire, in jurisdictions where you are lucky enough to get voir dire), is what the jury will believe the trial is about. In an injury case, the defense lawyer wants the trial to be about liability but the plaintiff’s lawyer should want the trial to be about damages – of course the defendant is liable, let’s talk about what he needs to pay the plaintiff to make up for what he did.
So, in an injury case we should be sure to spend a large part of our time talking about damages and harm, because that is what we want the jury to believe the trial is about.
This puts criminal defense lawyers at a disadvantage it seems – most opening statements that I have heard in criminal trials are about whether or not the defendant did it. Guilt or innocence is the equivalent of liability, but it is almost always the focus by prosecutor and defense lawyer. So – we need to make the criminal trial about something other than guilt or innocence, and we need to begin in the opening statement.
I’m not saying ignore guilt or innocence, that would be a fatal mistake. But we need to shift the focus to something, anything other than guilt. What the jury hears in opening statements are the things that they will be listening for when the witnesses take the stand. If guilt is the equivalent of liability, then what can you make the focus of a criminal trial that would be a substitute for damages and harm?
