By Molly Bishop Shadel, J.D., University of Virginia School of Law
What is an opening statement? As an attorney, your opening statement represents your first chance to connect with the jurors and create a lasting impression of what the case is really about. But preparing an effective opening statement takes careful thought, and there are strict limits on what an attorney can, and can’t say.
State of Florida v. George Zimmerman
To get a sense of what works and what doesn’t in an opening statement, let’s turn to the case of the State of Florida v. George Zimmerman. George Zimmerman shot and killed Trayvon Martin, a 17-year-old boy in Sanford, Florida, in 2012. The case captured the public imagination and ultimately became the impetus for the Black Lives Matter movement.
Learn more: Litigation and Legal Practice: Litigation and the American Legal System
The prosecution in the case tried to prove that Zimmerman was guilty of second-degree murder, or at the very least, manslaughter.
The Florida statute governing murder defines second-degree murder as follows:
“The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.”
Keep in mind the prosecution is trying to show ill will, hatred, spite or an evil intent on Zimmerman’s part. Here is an excerpted transcript of Prosecutor John Guy’s opening statement, where he begins by referring to Zimmerman:
“Good morning. ‘F***ing punks. These assholes; they always get away.’ Those were the words in that grown man’s mouth as he followed in the dark a 17-year-old boy who he didn’t know. And excuse my language, but those were his words, not mine. ‘F***ing punks. These assholes; they always get away.’ Those were the words in that man’s chest when he got out of his car, armed with a fully loaded semi-automatic pistol and two flashlights, to follow on foot Trayvon Benjamin Martin, who was walking home from a 7-11, armed with 23 ounces of Arizona brand fruit juice and a small bag of Skittles candies. ‘F***ing punks. These assholes; they always get away.’ Those were the words in that defendant’s head, just moments before he pressed that pistol into Trayvon Martin’s chest and pulled the trigger. And then, as the smoke and the smell of that fatal gunshot rose into a rainy Sunday, Sanford night, Trayvon Martin, 21 days removed from his 16th year was face down in wet grass, laboring through his final breaths on this earth, and that defendant, at that same time, was upright, walking around, preparing, preparing to tell law enforcement why he had just profiled, followed, and murdered an unarmed teenager.”
Now that is a vivid opening statement! The prosecutor painted a picture with his words—the rainy Sunday night, the wet grass, the smell of the gunshot, a boy with candy and fruit juice lying face-down contrasted with the “grown man,” “upright, walking around, preparing,” “profiling”, and “murdering.”
This is a transcript from the video series Law School for Everyone: Litigation, Criminal Law, Civil Procedure, and Torts. Watch it now, on Wondrium.
The expletives that Guy quotes appear to convey anger and hostility on Zimmerman’s part. This disturbing information was the foundation of what the prosecution ultimately would argue at the end of the case: that the jury should conclude from Zimmerman’s actions and words that he was motivated by “ill will, hatred, spite, or an evil intent.” The prosecutor creates this impression because it supports what he has to prove to win the case. At the heart of an attorney’s choices in constructing an opening statement is their theory of what the case is really about, and why the client should prevail.
In a sense, the opening statement is a bit like a table of contents, it orients the jurors to the nature of the dispute, who the witnesses are that they are going to see, and what each side is trying to prove.
In a sense, the opening statement is a bit like a table of contents: it orients the jurors to the nature of the dispute, who the witnesses are that they are going to see, and what each side is trying to prove. Then the lawyers fill in the actual story of the case during the trial through witness testimony and other pieces of evidence.
Learn more: Litigation and Legal Practice: Representing Your Client
The Moment of Primacy
If orientation were all that an opening statement is about, a simple sequence of events and a list of witnesses would be enough. Consider how you reacted to Guy’s opening statement. It likely grabbed your attention. It was designed to make the jurors sit up in their seats. You want to do that with the first paragraph of an opening statement or with the first paragraph of any effective speech.
That first moment is an important one psychologically, called the moment of primacy. It’s the one time when you can be sure that the jury is listening attentively. As the trial goes on, the jurors will get tired, attentions will wander, and the jurors may tune out what the lawyers say, but not during the very first moment of the trial.
You know they’re paying attention, so begin with what you want them to remember most. A lawyer will often feel nervous when the trial is starting. It’s tempting to try to comfort yourself by easing your way into the opening statement with pleasantries or some other unnecessary wind-up. This is a mistake; you waste the impact of the moment of primacy.
Learn more: Litigation and Legal Practice: Trial Strategy behind the Scenes
A Poorly Handled Opening Statement
Let’s demonstrate this idea with another famous case: the trial of O.J. Simpson. Pay attention to how the prosecution began its opening statement in Simpson’s highly charged criminal trial:
“Your Honor, Judge Ito, Mr. Cochran and Mr. Shapiro and Dean Uelmen, and to my colleagues seated here today in front of you and to the real parties in interest in this case, the Brown family, the Goldman family, and the Simpson family and to you, ladies and gentlemen of the jury, good morning. I think it’s fair to say that I have the toughest job in town today except for the job that you have. Your job may just be a little bit tougher. But your job, and like my job, both have a central focus, a single objective, and that objective is justice obviously. It’s going to be a long trial and I want you to know how much we appreciate your being on the panel. We appreciate the personal sacrifices you’re making by being sequestered. We understand that can be difficult.”
Are you on the edge of your seat? Seven sentences into its opening statement, the prosecution still hasn’t stated its theory of the case. The jury could be excused for being bored already. Not all material that grabs the jury’s attention is good, however.
Return to Guy’s opening in the trial of George Zimmerman. His use of Zimmerman’s profanities also grabbed your attention, but it was a risky choice. Guy made the point that those were Zimmerman’s words, not his. Fair enough. But he repeated the profanity several times. To some ears, that can seem like too much—too heavy-handed or just too unpleasant. The risk is that the jurors will decide they don’t like the prosecutor because he banged them over the head with repeated profanity.
As a lawyer presenting a case, you want to be one of those good guys. You want your first impression on the jury to be a good one.
Keep in mind that jurors are usually a little nervous at the outset of a trial, wondering what is going to happen and feeling the weight of their roles in this process. They are looking for guidance on what’s about to happen, whom they can believe, and who the “good guys” are. As a lawyer presenting a case you want to be one of those good guys. You want your first impression on the jury to be a good one because the opening statement is an exercise in persuasion. The character of the speaker counts.
In the second part of this series on opening statements in the courtroom, we take a look into the father of classical rhetoric, Aristotle, and his writings on how important a positive impression can be. Read it here: The Rhetoric—Applying Aristotle’s Work to Modern Day Courtrooms
Common Questions About Opening Statements
When writing an opening statement, you should get the jury’s attention and paint a detailed picture of the case. Identify all players involved and let the jury know precisely what’s at stake.
An opening statement is where the lawyer presents his/her case to the jury. The statement sets the tone for the rest of the trial.
In a trial, the plaintiff’s lawyer typically gives the opening statement first, followed by the defendant.
The length of an opening statement in a trial is relative to the length of the entire trial. The longer the trial, the longer the statement should be, and vice versa. On average, for a criminal case, the opening statement should be in the ballpark of twenty minutes to an hour.
