When we conduct our opening statement in a Plaintiff’s injury case we at some point need to point out that the defendant broke the rules. We generally don’t want to start accusing the defense of any bad acts or rule violations until we have laid the framework of the case. Thus we start our opening statement by teaching the jurors about the case. When we teach the case we begin by teaching the jurors what the rules are. After we clearly explain what the rules are we then go on to explain what the defendant did in this particular case. Remember that we are not advocates up and through this point in our case. We haven’t established the necessary credibility to begin advocating prior to this point. However after we complete voir dire and the teaching aspect of opening we can begin the advocacy process.
We begin advocating in opening by explaining how the defendant violated the rules. Remember that we have already explained what the rules are earlier in opening so we don’t need to do this again at this point. All we need to do is refer to the rule and then explain how the defendant violated that rule.
Some rule violations are clearly dangerous and need little explanation. Other rule violations need more explanation so the jurors can clearly see why violating this rule is dangerous. Ideally you will have already obtained an admission from the defendant that violation of the rule creates danger. Thus the reason for the rule. This should not be hard to do, and if it is difficult to do then this might indicate that you are not eliciting a good rule. A good rule should be obvious. You shouldn’t have to argue to fervently for jurors to understand why the rule exists. When you explain to your jurors how violating rules creates danger try to explain in general terms how the rule violation isn’t just dangerous in this specific instance but that it creates dangers in all sorts of different facets of society. We want jurors to realize that this same danger can effect themselves and or their own families. If the danger is isolated to your client, and doesn’t present a clear and present danger to the community jurors will be less concerned. We are innately hardwired to seek protection for ourselves and our family.
To this end explain how easily and often the rule violation can create danger in different scenarios. By demonstrating that the rule violation creates an ever present danger to society then your jurors will work hard to prevent other rule violations like this and similar harms from occurring in the community. The only way the jurors can do this is by way of a plaintiff’s verdict. You will later give the jurors the power to protect the community from these harms and losses to the community by way of their final verdict. By analogy explain to the jurors how rule violations such as these can create great gravity of harm. Say for instance your client suffered a broken arm because of the rule violation. Show by way of example how your client could have been killed by the same type of rule violation had the circumstances been just a little different. Use analogies that show danger to ordinary people in the community. David Ball and Don Keenan call this idea, “spreading of the tentacles of danger”.
If your rule is less commonsensical. Say you are dealing with a medical malpractice case. Then you are likely going to need to have your expert explain to the jurors why violating the rule is dangerous. If it is something more obvious like a rule that prohibits a driver from texting and driving at the same time then you may not need an expert. Any juror should be able to see why taking your eyes off of the road to text on a cell phone creates a danger to the public. So think about employing an expert for more less understood rules.
You will then need to explain to the jurors how the Defendant violated these rules. Again sometimes this will be more obvious than others. In any event you need to show exactly how the defendant violated the rule and how the violation caused the harm. You then need to explain what the defendant should have done instead of violating the rule. Then show how the danger and harm would have been avoided had the defendant simply followed the rule.
It may be the case that the defendant violated more than one rule. If this is the case do not try to consolidate your rules or go through the rules simultaneously. Instead go through the same systematic introduction of the rule as outlined above for the first rule before going on to the second rule. Introduce the second rule just as you did the first rule by walking the jurors through the same outline.
After you explain why the rules are in place and how the defendant violated those rules you can go on to undermining the negligence defense that opposing counsel will likely present in his or her opening. Sometimes this tactic is known as “drawing the sting”, we want to beat the defense to the punch with their own arguments. So if we are reasonably certain that the defense will try to argue that other causes or perhaps that our client is in part or solely responsible for the harm then we do not wait for the defense to bring this up in opening. To that end even if we think that there is a chance that the jurors might speculate as to this defense even without the defense attorney mentioning it then we need to bring it up and dispose of it right away. Remember, that as plaintiff’s attorneys we are inherently not trusted. If we wait for the defense to bring up these arguments thus juror’s distrust of us will grow stronger. If we bring it up first then our credibility is enhanced. Thus draw the sting.
David Ball has an excellent strategy for drawing the sting. David Ball directs plaintiff’s counsel to tell the jurors that “before deciding to come to trial you researched and considered all of the possibilities”. This is brilliant. In this way it doesn’t appear that you filed your complaint and then the defense realized something that you didn’t and now you are doing your best to overcome a defense verdict. By stating it as though you considered potential obstacles before coming to trial it demonstrates that you had the foresight to see all of these potential landmines in advance but still considered your client’s case to be a winning case. This is much more powerful. It is also true as you probably wouldn’t put on the trial had you though that the Defense had a better case than you.
After you tell the jurors that you had to consider all the possibilities before coming to trial go through each negligence contention you need to undermine. Explain to the jurors why this contention was important to the case. In this was you show the jurors that you thought each contention through. Then explain what you did to determine the truth as to what really happened, whether the circumstances are as defendant contends or as plaintiff contends. Explain that you spoke with witnesses, and experts, and everything else that you in fact did to validate the truth. Then finally explain what the result means. So say that after you discovered that the negligence contention was a non-issue you decided to come to trial. David Ball explains that if you want to see if you have done a good job with drawing the sting here simply wait for defense counsel to begin his or her opening statement. If defense counsel seems awkward in presenting his or her negligence contention then you know you did a good job.
This article was written for my, Eric Roy, and my staff’s benefit. My information on this subject comes from legendary trial consultant David Ball. If you wish to obtain a thorough understanding of this material I suggest you purchase any of David Ball or Don Keenan’s publications. David Ball’s book, Damages, is an excellent resource. These two have basically rewritten the book on plaintiff’s trial advocacy.