When we think about opening statement we need to remember that a trial is a battle of impression and not logic. It isn’t who has the biggest pile of evidence that wins. It’s what compelling impression is made upon the jurors. Studies make it clear that we form almost every decisions at a "gut" level and then form a reason for doing so with our intellect. It’s the big picture that counts, more then the law and more thenlogic.
The first question is how we should present an opening statement? The answer is that it should be a story and not a chronological outline of facts. In effect, you need to make the jurors "eyewitnesses" to what happened. Presented as if it were happening now and the jurors are present. A well told story does not have lots of irrelevant detailsbut instead paints a very broad picturethat keeps our interest. Think of a ten word telegram as this story: "mom in labor, baby is in trouble, nurse ignores, doctor not to be found, baby born brain injured." Learn to eliminate irrelevant details, big words and boring information. Paint word pictures for the jurors.
From whose perspective should you start the story of the case? Studies demonstrate that is almost always best to start by starting with what the defendant did or didn’t do and not the plaintiff or the plaintiff’s damages.As tell the story aboutthe defendant’s conduct, you focus the jury attention. Human nature is such that they will mentally begin tofill in the blanks and complete a story that makes sense to them. In doing so,they will start by looking at what the defendant didin a critical light, looking for things the defendant should have done or should not have done and forming their own version of the story. Studies show that they will be skeptical of the conduct of the person you are focusing on so start with the defendant.
Be sure you cover the evidence that deals with the defenses. You must anticipate the known defenses in your opening statement and cover the reasons why the are invalid or put them in a lightas to inoculate the jurors in advance. Answer the questions in the juror’s minds: What are the issues here? Why are we here? What did the medical team do wrong? What should have been done? Use analogies like:"That’s like playing Russian roulette with this baby’s brain" or "The doctor is passing the buck"
It is always better to use visual aides during the opening statement which will help shorten, simplify and help understanding by the jury. This would include photographs of the scene, diagrams, the key documents in dispute and the like.
Don’t forget to talk about the damages and the money. Damages should be discussed in connection with each element of damages the law allows.Economic damages are the easiest to discuss at this stageand should be reviewed. As to non economic damages, the advantage of discussing a specific verdict at this stage is to prepare the jury for what they will hear during final argument and to look for evidence to support such a result. The disadvantage is the risk you may lose the juryby asking for an amount they are not prepared to consider before they have heard all the evidence or asking for an amount which the evidence does not support. It depends upon how strong the evidence will be in the case on liability and damages. However, the opening statement should include references to non economic damages even if in generalities like "substantial amounts."
You should try to close with a strong ending which means compelling evidence or evidence with emotional impact. Using a theme, impact words and verbal as well as nonverbal communications increases your chance of doing so.In the end, a good opening statement is simply a well told story that keeps interest and has an emotional impact.