For an ongoing project, I'm trying to pull together the notes on opening statement I've gathered over the years. For what it's worth, here is the result of my work so far:
Organizing the Opening
--The opening should summarize the evidence in a way that presents the theme of the case.
--One simple method of organization: A short opening sentence or two that presents the theme of the case; a short 125-word overview of the case to orient the jurors and give them an aid to understanding the facts that follow; then a re-telling of the "story" chronologically.
--Another method of organization modeled after a screenplay: Begin by introducing time and place, then introduce your client (the protagonist), then introduce the complicating element (what's gone wrong), then relate events chronologically in a way that suggests the story should end happily.
--Keep this in mind when writing the opening: Make a list of the points you want (or need) to make. These are your headings. Then write the facts that will establish each point. You'll then relate the facts to the jury, not the "point." However, in relating the facts, the point will be obvious to them. (Example: Point--my client is a careful driver. Facts to make the point: "Mr. Jones looked both ways before pulling out, saw that he could pull out, entered the lane, then proceeded to the stoplight. He stopped behind the car in front of him. A split second later, he heard a screech, then felt the impact of the defendant's car crashing into the back of his").
--End the opening with something like this: "At the conclusion of the case, I will return to speak to you again, and I will ask you to find in my client's favor."
Do's for Opening Statement
--Begin in the formal way: "May it please the Court."
--Look at each juror.
--Begin by telling the jurors something important. If you want to introduce co-counsel or explain how the trial is going to work, do it after you're well into your opening.
--Speak in simple English using short, ordinary words.
--Use the words you choose to create images in juror's minds.
--Present your position without quarreling with your opponent.
--Create empathy for client by describing personal facts about him--a view into your client's life.
--Make a point by repeating it in different ways.
--Use visual aids and portions of depositions.
--Show the jurors the standard jury instructions as a way to demystify the process.
--For plaintiffs, who go first: Deal with the defendant by telling the jury what they should expect to hear from him; keep the defendant on the defensive.
--If you decide to preempt the defense by introducing weaknesses, do it in a positive way. Not this: "You will hear that Jim had a bad back before the accident, but that doesn't mean he shouldn't recover." But this: "Jim was all but recovered from a painful back injury when the defendant crashed his car into the back of Jim's car."
Don'ts for Opening Statements
Don't use notes. Opening is one of the few parts of trial you can plan for well in advance. Write out your opening and rehearse it.
--Don't comment on the credibility of witnesses. (In Illinois, it's objectionable to say in opening that a witness is not telling the truth.)
--Don't tell the jurors the case is "interesting." Your opening should demonstrate why the case is interesting.
--Don't use the stock phrase "what I say isn't evidence." Once you say it, the jury will quit listening.
--Don't say "The evidence will show" at the beginning of each sentence. This is boring and repetitive. Instead, state the facts.
--Don't refer to your opening as a "story." Though it is, the jurors may misunderstand: a "story" is also something someone tells when they're being less than truthful.
--Don't be overdramatic. A highly dramatic, engaging "performance" may leave the jurors feeling like the rest of the trial is a letdown, just at the time you want them to be engaged and interested.
--Don't argue, which isn't permitted. How to tell if you're arguing: would the words you are saying ever come out of a witness'smouth? If not, you're probably arguing. (Example: "The accident caused Mr. Jones grievous, permanent harm." That's not how a witness would testify, and it's argument).
--Never promise more than you can deliver. Don't overstate or exaggerate any item of your case (calling an injury "permanent" when there is no evidence of permanency). You want the jurors to think later, "The case is even stronger than I expected."