Excerpted from Trial Preparation Tools by Beth D. Osowski
Consider beginning your next opening statement with your case theme. A good case theme will reduce the case to unifying principles that are broader than the case itself. It will be simple and clear and concise. If your theme meets these criteria, then it will often be the best way to start an opening statement.
While juries usually obtain their first impression of you and your client before opening statement, this is still the first time you have to impress the jury with your story. The case theme is really the moral of your story. It should grab the attention of your audience and set the stage for the tale you are about to tell.
If you adhere to the theory that it is best to start with the injustices of the opposition, then that should form the foundation for your case theme. You may then choose a second case theme for damages.
I attribute a good share of the victory in my most successful case to date to my choice of the theme and the use of that case theme throughout trial. It was a fairly complex case with four different parties on the verdict. I was most worried about liability and hoped the jury would assess the vast majority to the one non-settling defendant. My choice of case theme focused on the allegations of negligence against that one party alone: the failure to post a sign. My first words in opening and last words in closing were: “This is a case about a sign.” It apparently resonated so well that in motions after verdict, the judge refused to change the jury’s verdict of one hundred percent negligence against the defendant I targeted with the same words: “This was a case about a sign.”
In choosing this theme, I had hoped it would be something easy to remember. The first time that I said those words to the jury, I tried to resist rushing. I paused and tried to make brief eye contact with all of the jurors before I said anything more. I wanted the jury to filter everything else through the framework that I placed before their eyes. I knew that there would be many more attorneys and witnesses pointing in many other directions, and I wanted them to be able to remember that this was a case about a sign, and no matter how many other things went wrong to cause my client’s fall, it all could have been prevented with a simple sign.
Nine Effective Case Themes and When to Use Them
- This is a case about [e.g., a sign].
This may work well in a case in which you want to persuade the jury to ignore all the other complexities and distractions of the trial to focus on one prime cause. It also helps to simply that cause.
- The surgery was supposed to be routine.
This line acts like a teaser to capture the jurors’ attention, while it is also aimed to make the jurors feel. Everyone experiences routine events, and thus, a line similar to this might remind jurors that the harmful event could happen to anyone.
- The plaintiff had a very unlucky day.
This opening may be used by a defendant that needs to admit that bad things happened to the defendant, but it was nothing more than bad luck—not an event caused by the defendant.
- The corporation said “trust me” when it invited Mary into its doors.
This opening line may work to draw the jury’s attention to the great trust customers place on businesses, and the corresponding obligations that businesses must meet.
- Don’t let the finger pointing cause you to ignore the simple fact that [e.g., the plaintiff was not seriously hurt.]
If one of the parties acted in a disproportionately bad way—such as by driving drunk—the opposition may be attempting to inflame the jury against the drunk driver. An opening such as this may help the jury to focus on some other facts, such as the other driver was also negligent or was not hurt very seriously. The finger pointing also may become an issue when there is more than one defendant. As a plaintiff’s lawyer, I am often fearful when there are multiple defendants pointing the fingers at each other that the jury may be left too confused to find anyone sufficiently negligent.
- The fewer the years remaining, the more precious each one is.
At times, when an elderly person is severely hurt or killed, defendants will emphasize the limited number of years remaining in the plaintiff’s life expectancy in an effort to limit the damages. Plaintiffs need to turn that around to make those few years seem more precious.
- Napoleon Bonaparte was reported to have said, “If you wish to be a success in the world, promise everything, deliver nothing.”
This line could be used to get the jury to focus on a party’s actions who is alleged to have failed to deliver on a promise. It certainly suggests a selfish motivation and greed, and thus, may also risk being too argumentative.
- The simplest explanations are often the best.
Such an opening line may help the jury to focus on a simple explanation that favors your client, over a far more complex explanation offered by the opposition.
- Sometimes life is more painful than death.
Catastrophic injuries can be very difficult for a jury to measure. For an injured person who has severe brain damage, lives in a persistent vegetative state, or who is so severely physically injured, such that death may have been more humane, then this statement may help the jurors to put the extent of the pain and suffering in perspective.
About the Author
Beth D. Osowski represents civil litigants in many areas, including motor vehicle accidents, premises and product liability, medical and legal malpractice, contract and business litigation, construction disputes, will contests, real estate and landlord/tenant matters.
She has presented many legal seminars as well as authored dozens of outlines for continuing legal education courses, including: Trial Techniques, Selecting a Jury, Themes for Maximum Jury Appeal, Quantifying Pain and Suffering Damages for the Jury, Crossing the Defense Medical Examiner at Trial, and Building the Plaintiff’s Case.
Trial Preparation Tools brings you courtroom tested strategies for success, along with more than 200 time-saving forms, checklists, logs, calendars, idea lists, tables, and spreadsheets.