We left off talking about Charlotte Car accident Jury Trial Part 1 talking about jury selection. Once the jury has been selected the next step is the opening statement followed by the presentation of the Plaintiff’s evidence.
By this time the jury has a basic understanding of car accident through jury selection questions. The jury should already know the parties, how the accident took place, and a general idea of the medical treatment. The purpose of the opening statement is to highlight the main theme of the case. Every case has a theme that the personal injury lawyer wants to get across to the jury. Remember, your car accident is personal to you but just a story to someone else. The point of a jury trial is to tell your story so that the jury understands what you went through.
The opening statement allows for more flexibility compared to jury selection to start introduction underlying themes that the lawyer wants to get across. For example, if the defense is a thin attempt to get out of paying by the insurance company the argument I like to get across to the jury is the defendant is not taking responsibility for their actions. This is a powerful theme in our county. It is ingrained in our citizens from day one that individually we are responsible for our own actions. This is important since the jury doesn’t know the full picture (ie it is the insurance company not the defendant making the decision to not pay).
Different judges will allow more or less flexibility. The lawyer should know who their judge is prior to giving the opening statement. No lawyer wants to get objected to (and sustained) on their opening statement. Many young lawyers make the mistake of arguing in their opening statement. Arguing is prohibited in an opening statement. Some other common mistakes lawyers make include speaking to long, trying to introduce evidence which hasn’t been consented to, claiming that the evidence will show more than it actually will (over promising and under delivering) and personalizing the opening statement.
The opening statement is not a time to argue the case. That is saved for the closing argument. Rule 9 of the N.C. General Rules of Practice for the Superior and District Courts provides: “[a]t any time before the presentation of
evidence counsel for each party may make an opening statement setting forth the grounds for his claim or defense. The parties may elect to waive opening statements.” This is not the time to argue and will result in an objection.
Many times young lawyers will promise that the evidence will show X and Y. Trials are not like TV or movies. In real life witnesses don’t show up or get sick or freeze on the stand. When you fail to live up to your promise the defense attorney will remind the jury during closing arguments of that fact. It is better to under promise and deliver then over promise and fail to deliver. Recently I had a trial where I knew what a witness was going to testify to since I had spoken to him and his wife multiple times. I also knew the defense attorney had not spoken with him. During my opening I purposefully did not tell the jury what he was going to say since I did not want to tip my hand and alert the defense attorney. The defense attorney was completely shocked when the witness got on the stand and testified exactly how I knew he would and helped us win the case.
Inexperienced lawyers will begin their opening statement with a personal story. This is objectionable for two reasons. First you are not allowed to personalize a opening statement, the personal story will not be evidence in a case and it is closer to an argument then foreshadowing the evidence.
After the Plaintiff’s lawyer gives his statement the defendant has an opportunity to give an opening statement as well. The Plaintiff’s lawyer should pay close attention to the points the lawyer tries to make. Certainly this may alert the plaintiff’s lawyer of any issues which may arise during the course of the trial.
There has been reams of articles written about opening statements. Personally I don’t believe a lawyer can win a case during opening statements but I do believe they can lose a case. Jurors today are too smart, educated and knowledgeable about the jury system to be fouled by a lawyers antics. They have seen too many lawyer shows and movies so they know what to expect. I believe it is best to provide an outline of the evidence as well as a theme of what I want the jury to know. I try to keep it simple as well. Sometimes I will show them a key piece of evidence but rarely.
One thing inexperienced personal injury lawyers do is talk for too long. The first problem with that is you face an objection from the judge but the other is you run the risk of losing the jury’s attention. Remember, by this time the jury has been sitting around during the trial calendar, jury selection, and maybe lunch. While they are eager to begin the trial they also may be tired. Talking on and on may result in the jury stopping paying attention or worse, falling asleep. The lawyer needs to treat the jury with the respect they deserve. This means being respectful of their time.
After the opening statement the plaintiff’s lawyer will begin the presentation of the evidence. Clearly this is the most important part of the trial. The opening statement sets the stage for the trial. In an way you can consider the opening statement the opening band before the headliner.
In the next article we will discuss the presentation of the Plaintiff’s evidence during direct and cross examination. This is when the jury will begin examining the evidence in the case and hear from the parties themselves. To discuss your Charlotte personal injury case please contact us. You will speak directly with an attorney who can answer your questions.