By Dr. Ken Broda Bahm:
The reserved opening statement is a strategy that, in all my years helping in the courtroom, I have never seen applied. In theory, a defendant typically has the right to wait until the plaintiff or the state has put on its case, and then offer their opening statement just before putting on the defense. In practice, however, there are very good reasons not to do that and those reasons generally end up being decisive. But a current article in Law 360, entitled, “‘Our Heads Were Spinning’: Trial Atty Explains Rare Strategy” sheds some light on the approach that is written about as infrequently as it is used.
The article by Cara Salvatore focuses on two recent cases in Denver. In one, Latham & Watkins partner Elizabeth Prewitt saved her defense opening in a criminal case alleging price-fixing in the chicken industry. In another, Winston & Strawn partner Tom Melsheimer saved his opening in an employee-poaching case for the dialysis company DaVita. For these defendants, the first case ended in a mistrial, while the second yielded a defense verdict. Law 360 interviewed Prewitt on the reasons for the move: “It gives the defense attorney the opportunity to stand up right after the government closes its case and give a forward looking view of what we expect the defense case would be,” she said, adding that it allows the opening to be tailored to exactly what the jurors saw and did not see in the government’s case. That said, there are some good reasons why the strategy is rare. In this post, I will briefly consider the pros and the cons, and identify a couple situations where the reserved opening could make sense.
The Pros and Cons of Reserved Defense Opening
Let’s start with the con, because it is a big one. By deferring the opening, you are ceding the ground to the other side to set the first impressions in the case. That is typically enough of a con that it discourages most defendants from even thinking about waiting until mid-trial to deliver an opening. It isn’t that jurors reach a final decision in opening statement (that chestnut and the statistic you have heard connected to it isn’t really grounded in the science), but the first impressions are firmly set in opening. So they may not decide on a verdict, but they will decide what kind of story this case involves. Allowing the other side to do that by themselves is justifiably treated as a huge risk. More practically, without an opening, you have to cross the other side’s witnesses without providing the jurors with a map or an overview of what you are getting at and why.
But if there were circumstances that could cause us to avoid or to downplay that con, then there are some pretty big advantages for a later opening: It catches the other side off-guard; it gives you an opportunity to speak directly to the jury after hearing their complete case; and it gives you chance to regain and focus jurors’ attention just as you are putting on your own case. In most situations, those advantages will be outweighed by the disadvantages but it is worth remembering that those are pretty big advantages.
Two Situations that Might Make Reserved Openings Rational
Even if it is just a creative exercise, it is worth thinking about what might make it sensible to risk the con in order to get at the pros. I see two potential circumstances.
When a Collective Defense Distributes the Work
This is the main reason the Law 360 article focuses on. In both of the recent cases where a defendant held-off on their opening, there were multiple defendants with others opening at the start of the trial. In Prewitt’s chicken price-fixing case, there were a total of ten individual defendants. So, it makes a lot of sense: Rather than adding one more opening that would end up sounding a lot like the nine others that they just heard, one defendant keeps their powder dry for later. When there is an overlapping defense, as there was in this case, that is a tactic that can help all of the defendants.
Given the frequency of multi-defendant civil cases, it is actually a surprise when you think about it that the strategy isn’t used more often. For example, how often have you heard a second or third defendant stand up for opening, say “I don’t want to repeat what you’ve already heard,” and then proceed to repeat what you’ve already heard? How much better would it be for one defendant to rely on the others for first impressions, and then make an opening mid-trial that refocuses and reframes the collective defense?
When Your Case is Singular Enough that You’re Confident You Can Overturn First Impressions
Outside of the multiple-defendant scenario outlined above, I think that a reserved opening is likely to be an exceedingly rare occurrence. But, conceptually, it does seem possible that there could be a case situation where it would make sense.
For example, if your case really does come down to a single and simple point — so much so that there isn’t much to cover in opening statement — it could make sense to open at a time when you can turn it into a mid-trial refutation of your adversary’s complete case. The amount of explanation that you got out in attorney-conducted voir dire, for example, might be sufficient that jurors have a good idea of what your case is at the start anyway.
Alternately, it may be that you have a smoking gun that is so good that it will instantly reframe the case and you don’t need to worry about first impressions. The whole discovery apparatus of the modern trial is set up to avoid that kind of in-trial surprise, but it remains conceivable that a defendant really would have a card that they would not want to show until after the other side is done with their case.
At the end of the day, however, these situations are still rare enough that it will generally make sense to open at the traditional time: At the start of trial.
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Other Posts on Opening Statement:
- Opening: Build Your House First, Then Take Aim at Their House
- Defense Opening: Give Jurors a Reason for an Open Mind, Not Just a Request for One
- In Conclusion: 5 Tips on Ending Your Opening