To Open or Not To Open? – Consider Waiving or Reserving Your Opening Statement

For the first time in my 25 years of trying cases to juries, I recently became faced with a set of facts in a case in which the plaintiff’s theory of the case was so diametrically opposed to the theory of my defense – with the parties’ respective damage claims being mutually exclusive, in the strictest sense of that term, also – that I really did not want to tip off the other side to my exact theory of the defense in my opening statement.  Thus, for the first time in my career, I strongly and seriously considered reserving my opening statement until I put on my client’s defense case in-chief.

Experienced trial lawyers look forward to opening statements since this is their first real opportunity to communicate directly with the jurors and tell them about the case.  In some jurisdictions the party with the burden of proof, normally the plaintiff, must make an opening statement that demonstrates a prima facie case.  In others, there is no legal requirement that either party make an opening statement.  Moreover, some jurisdictions permit the defendant to reserve an opening statement until he begins the defense’s case in chief.

In Ohio, Ohio Revised Code §2315.01 mandates that an opening statement be made by both the plaintiff and defendant.  Under case law construing that section, however, a defendant may move the court for permission to defer its opening statement until the conclusion of plaintiff’s’ evidence.  That decision lies within the discretion of the court, who has authority to control the procedures applicable to the order of a jury trial under §2315.01. Schultz v. National Revenue Corp., 2000 Ohio App. LEXIS 5241 (Ohio Ct. App., Franklin County Nov. 14, 2000).

It is difficult to imagine a situation where a party, either plaintiff or defendant, would find it advantageous to waive making an opening statement.  Because trials are conducted to see which viewpoint of a disputed set of facts the jury will accept as true, making an effective opening statement gives you a head start over your opponent.

A defendant, however, would seem to have a more realistic decision to make:  if permissible, should he make an opening statement immediately after the plaintiff, or should he reserve it for the defense case in chief?  Most defendants open immediately after the plaintiff.  Reserving the opening statement means that plaintiff’s version of the facts will go unchallenged for, perhaps, a long period of time.  Coupled with a strong case in chief, the plaintiff may well have convinced the jury before the defense gets a chance to tell its side of the case.

Nevertheless, some defense lawyers may prefer to reserve opening statements because they will have the benefit of hearing the plaintiff’s evidence before deciding exactly what to say.  However, reserving the defendant’s opening statement necessarily creates the impression that you did not have a defense, so you waited to see what the plaintiff’s case looked like before devising one.

Nonetheless, the defendant should at least consider reserving his opening statement where he has a strong case and there are significant strategic advantages in that approach.  This situation would exist where a strong affirmative defense exists and, perhaps because of poor or incomplete discovery, the plaintiff has not uncovered all of what the defense evidence will be.  Reserving the opening statement in such a situation will prevent the plaintiff from altering its case in chief to blunt the anticipated defense.  The defendant might also reserve his opening statement when he has more than one defense to raise, and cannot make up his mind which one to raise until he has heard the plaintiff’s case in chief.

In my recent jury trial, the judge denied my motion to defer my opening statement, making the issue essentially moot.  Nevertheless, the exercise of making that decision is one that any litigator should not take lightly when preparing for a jury trial.

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